SZMPJ v Minister for Immigration
[2009] FMCA 1263
•18 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMPJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1263 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of China claiming fear of persecution for reason of religion – whether Tribunal breached Migration Act 1958 (Cth) s.424A – whether Tribunal breached Migration Act 1958 (Cth) s.91R(3) – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 91R, 91X, 424AA, 424A, 425A, 426A, 441A, 476 |
| SZMPJ v Minister for Immigration & Anor [2008] FMCA 1640 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 |
| Applicant: | SZMPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2294 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 December 2009 |
| Date of Last Submission: | 14 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondents: | Ms Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2294 of 2009
| SZMPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China who is applying to the Court for review of a decision of the Refugee Review Tribunal. On 20th August 2009 the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
In her application filed on 18th September 2009 the Applicant seeks the issue of writs of certiorari and mandamus. She contends that the Tribunal fell into jurisdictional error by breaching the provisions of s.424A of the Migration Act.
Background
The Applicant arrived in Australia on 16th October 2007 and applied for a Protection (Class XA) visa on 27th November. In a statement attached to her application, the Applicant claimed:
In 1980s when I was middle-aged, I had worked for our church and was very active on all the church activities, for which I became a thorn in the local government flesh.
I was first persecuted by the local government authority in my home town in 1998 and since then this persecution on me continued till I fled from China not long ago. My father and brother were persecuted to death by the same government. For lifelong I will never forget the inhuman persecution that my family and myself suffered from the government in my home country.[1]
[1] See Court Book at 27
A delegate of the Minister for Immigration and Citizenship refused the application for a protection visa on 31st January 2008. In the Protection (Class XA) Visa Decision Record the delegate gave these reasons for refusing the application:
However, the applicant has provided no detail or evidence of her claimed religious activities either in China or in Australia except her vague claims that she attended church gatherings with her family. She did not provide any details if she was born Christian or converted to Christianity…
The applicant has also not provided any information as to why or how she would be persecuted because of her Christian beliefs. She has also not specified whether her specific Christian beliefs are Catholic, Protestant or other, or if she was baptised, and has not explained why she cannot worship in any of the officially approved venues, at which, Country information indicates, religious believers can worship without difficulty in most areas of the country. I find her reluctance to provide these details raises strong doubts whether the applicant genuinely fears persecution in the PRC due to her claimed Christian background.[2]
[2] Court Book at 39
The Applicant applied to the Refugee Review Tribunal on 10th March 2008 for review of the delegate’s decision.
Application to the Refugee Review Tribunal
The Tribunal invited the Applicant to attend a hearing on 30th April 2008, which was rescheduled, first to 13th May and then to 23rd May 2008. The Applicant attended the hearing on 23rd may and gave evidence with the assistance of an interpreter in the Fuqing dialect of Chinese. She provided her passport and some photographs to the Tribunal at the hearing.
On 26th May 2008 the Tribunal wrote to the Applicant under the provisions of s.424A of the Act, inviting her to comment on or respond to information that, subject to any comments she might make, would be the reason, or part of the reason, for deciding that she was not entitled to a protection visa. The Tribunal’s letter asked the Applicant to provide her comments or response by 18th June 2008.
The Applicant replied to the Tribunal’s letter on 16th June 2008, setting out her comments. She provided a further documents and photographs to the Tribunal on 27th June 2008 and a further statement on 8th July.
The Tribunal handed down its decision on 10th July 2008, affirming the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
The Applicant sought judicial review of this decision in this Court, and on 17th December 2008 Smith FM issued writs of certiorari and mandamus, quashing the Tribunal decision and remitting the application for review to the Tribunal for determination according to law. See SZMPJ v Minister for Immigration & Anor[3]
[3] [2008] FMCA 1640
The Tribunal invited the Applicant to a hearing on 16th April 2009. She attended that hearing and gave evidence with the assistance of an interpreter in the Fuqing dialect. She submitted some documents to the Tribunal from the Padstow Chinese Congregational Church.
At the hearing, the Tribunal discussed with the Applicant some information that the Tribunal considered might be the reason, or part of the reason, for affirming the review, under the provisions of s.424AA of the Act. The Tribunal stated in its Decision Record:
She was invited to comment on the information orally in writing after the hearing, and requested and was granted 15 days to provide a written response to this information. A submission was received from her migration agent on 1 May 2009 (details set out below).[4]
[4] Court Book 190 at [100]
The Tribunal made its decision on 20th August 2009, affirming the decision not grant the Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record, the Tribunal set out the Applicant’s claims and evidence under the following headings;
· Information given by (SZMPJ[5]) to the DIAC
· Information provided to the Tribunal as previously constituted (the “first Tribunal”)
· (The Applicant’s[6]) evidence to the present Tribunal
· Post-hearing submission of 1 May 2009
· Christians in Fujian Province
[5] The Applicant’s name is not published to comply with s.91X of the Migration Act
[6] Name not published to comply with s.91X
In its Findings and Reasons, the Tribunal accepted that the Applicant was a national of the People’s Republic of China, based on her Chinese passport. The Tribunal accepted certain claims by the Applicant about her personal circumstances.
However, the Tribunal was not satisfied about the credibility of the Applicant’s claims of persecution. The Tribunal stated:
With regard to her claims to have been suspected to have been a member of an underground, meaning unregistered, church in Jianjing and to have faced official harassment and periods of detention because of her religious beliefs and activities, I have considered the following:[7]
[7] Court Book 193 at paragraph [118]
The Tribunal then set out six separate reasons as to why it was not satisfied as to the veracity of the Applicant’s refugee claims:
Firstly, (the applicant) showed a reasonable level of familiarity with the Christian faith when giving oral evidence to the Tribunal as first constituted. That may indicate that she was a practising Christian in China. However ,she also claimed to have been attending church in Australia, and for that reason the Tribunal is not satisfied, merely on the basis of that familiarity, that her knowledge of Christian beliefs was gained while a member of an underground church in China.
Secondly, I consider reliable evidence from other sources indicating that, since at least 2000, officials in Fujian province have had a generally very liberal attitude towards Christians, and that there are hundreds of both family and government registered churches…
Thirdly, (the applicant) has given conflicting evidence to the Tribunal about her Christian activities in China…
Fourthly, according to the translation by an accredited translator, the letter from the Fuqing City Jianjing Local Christian Church, which she now claims is the church to which she had belonged all her life, referred to her having been in “hiding in a remote area for years” from some point after her detention in 2002. Subsequently, by way of explanation, it has been submitted by Mr Gao[8] that (the applicant) was living after 2004 with her parents but that this was ‘in a rural area miles away from Fuqing town centre”. (The applicant told the first Tribunal that she was living at her parents’ home at 130 Zhongfu, Jiudian village, Jianjing town, Fuqing from 2004 to 2007. There is no evidence before the tribunal that Jiudian village, which is the same town in which (the applicant) told the Tribunal she was previously living with her husband, is in a remote area. I consider the claim implausible that (the applicant) was in hiding at all between 2004 and 2007…
Fifthly, (the applicant) has claimed that her clothing shop was closed down in 2004 because of the problems she had had arising from her involvement with an underground church. However on the protection visa application form it was stated that she was the manager and owner of the Haopai Clothing Shop from 2001 to October 2007, information that casts considerable doubt on the claim that the shop was closed down in 2004…
Sixthly, she told the first Tribunal that she was detained by the police on one occasion, but subsequently claimed to have been detained on two occasions…[9]
[8] The Applicant’s migration agent
[9] Court book 193-194 at [119]-[124]
The Tribunal also considered the Applicant’s evidence that she had been attending church in Australia since her arrival, but disregarded that evidence under the provisions of s.91R(3) of the Migration Act as it was not satisfied that the Applicant had engaged in that conduct other than for the purpose of strengthening her refugee claim.
The Tribunal was not satisfied that the Applicant had a well founded fear of Convention-related persecution in the People’s Republic of China and, not being satisfied that she was a person to whom Australia has protection obligations under the Refugees Convention, found that she did not satisfy the criterion for a protection visa set out in s.36(2)(a) of the Act.
Application to the Federal Magistrates Court
The Applicant commenced proceedings for judicial review on 18th September 2009, seeking writs of certiorari and mandamus, claiming that the Tribunal fell into jurisdictional error by three separate breaches of s.424A of the Act.
The Applicant claims that the Tribunal breached s.424A by failing to invite her to comment on the following:
a)Its finding that there was “reliable evidence from other sources indicating that, since at least 2000, officials in Fujian province have had a generally very liberal attitude towards Christians”[10];
b)Its finding that the Applicant had “given conflicting evidence to the Tribunal about her Christian activities in China”[11]; and
c)Its finding that “there is no evidence before the Tribunal that Jiudian village, which is the same town as (the Applicant) told the Tribunal she was previously living with her husband, is in a remote area”[12].
[10] Court Book 193 at [120]
[11] Ibid at [121]
[12] Court Book 194 at [122]
The Applicant did not file any written outline of submissions but attended Court and made oral submissions. The submissions were, for the most part, confined to a restatement of the merits of her refugee claims and a complaint that the Tribunal Member had not believed her evidence.
For the Minister for Immigration and Citizenship, Ms Warner Knight, solicitor, submitted that all three of the Applicant’s claims had not been made out. Particulars (a) and (b) were factually incorrect, as the Tribunal’s s.424A letter sought comment on the matters referred to in particular (a), and the Tribunal had discussed the matters referred to in particulars (a) and (b) with the Applicant at the hearing and invited her comments.
Further, Ms Warner Knight submitted that s.424A did not engage any of the matters in the Applicant’s three claims.
Conclusions
The Applicant claims that the Tribunal breached s.424A by not giving her the opportunity to comment on country information about the liberal attitude towards Christians by officials in Fujian province. This claim cannot succeed because, in its s.424A letter to the Applicant of 26th May 2008, the Tribunal specifically asked her to comment on that information:
However independent country information suggests that there is a high degree of tolerance of “underground” churches in Fujian. Further country information indicates that 6.8% of the population attend house churches and that a total of 10.7% of people in Fujian province are Christians and that house churches in Fujian province were active and growing in number…[13]
[13] Court Book 65
The Applicant did in fact comment on that information in her letter of the 16th June 2008, saying:
Comment: Dear officer, I have no idea about the information you get. By my case, I suffered for my Christian belief. I persecuted in china. I pray to God. God brings me here. I gave thanks to God. What I said is true.[14]
[14] Court Book 69
In any event, country information is excluded from the operation of s.424A(1) by s. 424A(3)(a).
The claim in Ground 1 particular (a) does not show any breach of s.424A of the Act.
In the second particular of her claim, the Applicant asserts that the Tribunal failed to invite her to comment on the fact that she had given conflicting or inconsistent evidence to the Tribunal about her Christian activities in China.
The Applicant was, in fact, specifically invited to comment on the inconsistencies in her evidence about her Church membership in China. The Tribunal sets out that it advised her about information that it considered might be the reason or part of the reason for affirming the decision and gave her the opportunity to comment on it, under the provisions of s.424AA of the Act:
She was invited to comment on the information orally or in writing after the hearing.[15]
[15] Court Book 189
The Tribunal decision record sets out in paragraphs [95] to [104] the information that the Tribunal discussed with the Applicant. She replied to most of the matters orally but also requested the opportunity to put in a written submission after the hearing. The Tribunal agreed and the Applicant’s migration agent submitted a post-hearing submission on 1st May 2009, which the Tribunal summarised at paragraphs [106] to [110].[16]
[16] Court Book 191-192
It is also well established that inconsistencies in the Applicant’s evidence are not “information” for the purposes of s.424A. Inconsistencies are not matters that “contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations” (SZBYR v Minister for Immigration and Citizenship[17] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ at [17]). Their Honours went on to hold at [18]:
However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
[17] (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26
The Applicant’s claim in Ground 1 particular (b) does not show any breach of s.424A of the Migration Act.
In the third particular of her claim, the Applicant asserts that the Tribunal failed to invite her to comment on the Tribunal’s finding that there was no evidence that Jiudian village was in a remote area.
Again, the Tribunal’s finding that there was no evidence of the fact asserted by the Applicant is not “information” for the purpose of s.424A of the Act.
The Applicant’s claim in Ground 1 particular (c) does not show any breach of s.424A of the Migration Act.
The Applicant’s claim that the Tribunal fell into jurisdictional error by failing to comply with s.424A of the Act has not been made out.
Noting that the Applicant is not represented, I have considered whether there is any arguable case of jurisdictional error.
There is no breach of s.425 of the Act. The Applicant was invited to attend a hearing of the Tribunal and provided with the assistance of an interpreter in the dialect of her choice. There is no complaint about the quality of the interpretation.
The hearing invitation of 5th March 2009, inviting the Applicant to attend a hearing on 16th April 2009, complies with the requirements of s.425A of the Act. It sets out the day, time and place of the hearing. It was sent by fax to the Applicant’s migration agent, his authorised recipient, which is a method prescribed by s.441A. The invitation also gave the Applicant the prescribed period of notice and set out the effects of s.426A of the Act.
The issues discussed at the Tribunal hearing were those relating to the Applicant’s claim to have been a practising Christian in China, who had been persecuted by being a member of an unregistered underground church. These issues were the same issues identified by the delegate in the delegate’s decision.[18] The Applicant should have been clearly on notice of the issues to be dealt with at the hearing.
[18] Court Book 39
There is no breach of s.425 of the Act.
I considered whether the Tribunal had breached s.91R(3) of the Act when it stated:
Firstly, (the applicant showed a reasonable level of familiarity wit the Christian faith when giving oral evidence at the Tribunal as first constituted. That may indicate that she was a practising Christian in China. However, she also claimed to have been attending church in Australia, and for that reason the Tribunal is not satisfied, merely on the basis of that familiarity, that her knowledge of Christian beliefs was gained while a member of an underground church in China.[19]
[19] Court Book 193 at [119]
The Tribunal disregarded the applicant’s conduct in Australia under s.91R(3) because it was not satisfied that the Applicant was engaged in that conduct otherwise for the purpose of strengthening her claim to be a refugee.[20]
[20] Court Book 194 at [128]
However, this does not mean that it was impermissible for the Tribunal to consider the Applicant’s conduct in Australia in this way. In Minister for Immigration and Citizenship v SZJGV[21], Crennan and Kiefel JJ held at [65]:
In this case the object of s.91R(3) requires that the section be read more narrowly. It should not be read as requiring evidence of a person’s conduct in Australia, or that person’s motive for that conduct, to be disregarded for any purpose in connection with the determination of their application for a protection visa. Evidence of that conduct and findings about motive may be applied to discredit the applicant’s claim.
[21] [2009] HCA 40
This is the case in the mater under review. I am satisfied that there is no breach of s.91R(3).
It is also worth noting that the Tribunal set out a total of six different reasons for disbelieving the Applicant’s claims to have been involved in an underground Christian church in China. They are separate from each other and by no means interdependent.
There is no jurisdictional error in the Tribunal’s decision. It is a privative clause decision as defined in s.474(2) of the Act. As such, it is final and conclusive and not subject to the orders in the nature of certiorari and mandamus that the Applicant seeks.
The application will be dismissed.
I will consider the question of costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 16 December 2009
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