SZMSS v Minister for Immigration

[2009] FMCA 1232

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSS v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1232

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

Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZMSS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1583 of 2009

Judgment of: Emmett FM

Hearing date: 25 November 2009

Date of Last Submission: 25 November 2009

Delivered at: Sydney

Delivered on: 11 December 2009

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent: Mr Y. Shariff

Solicitors for the Respondent: Ms L. Weston, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1583 of 2009

SZMSS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. 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 dated 4 June 2009 and handed down on 5 June 2009.

2. The applicant claims to be a citizen of the People’s Republic of China (“China”), a father of four and of Christian faith (“the Applicant”). The Applicant claimed that he feared persecution by authorities in China by reason of his breach of the one child policy and by reason of his membership of an unofficial Christian church since 2006 in China.

3. The Applicant arrived in Australia on 1 January 2009 on a sponsored family visitor visa issued on 13 November 2007.

4. On 14 February 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 11 April 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 7 May 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 12 August 2008, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa.

8. The Applicant sought judicial review of that decision in this Court and, on 12 February 2009, Federal Magistrate Driver remitted the matter for determination according to law.

9. On 5 June 2009, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision under review.

10. On 2 July 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. 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.

2. 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 (“the Convention”).

3. Australia has protection obligations to a refugee on Australian territory.

4. 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, 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.”

5. 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

1. The Applicant provided a statement in support of his protection visa application in which recounted the births of his four children, the last three being born in breach of China’s one child policy. The Applicant stated that, following the birth of his third child in January 1988, he was told he had to pay a penalty and that his wife would be sterilised immediately. The Applicant claimed that he had also paid a penalty following the birth of his second child. The Applicant claimed that, following the birth of his third child, he moved from his home village and travelled with his family from one place to another from 1988 to 1991. The Applicant claimed that, following the birth of his fourth child, a son, in January 1991 he was told again he would have to pay a larger fine than either of the previous two fines.

2. The Applicant stated that soon after 1991 he moved to Zhuhai in Guangdong province. The Applicant claimed that in January 1994 he set up his own company to develop real estate and that in the following years his business was successful. However, the Applicant said that he still “dared not to return to my hometown in Fujian.”

3. The Applicant claimed that in 2005, following a change in government policy, the Applicant’s business declined and became “bankrupt”.

4. The Applicant claimed that, following the collapse of his business, he met Mr Zhang who introduced him to underground Christian gatherings in his home. Thereafter, the Applicant claimed that he attended religious gatherings with Mr Zhang four times a week and was baptised on 1 June 2006 by a priest from Macau. The Applicant stated that the underground church of which he became a member was the Zhuhai Christian Family Church.

5. The Applicant claimed that he distributed pamphlets urging Chinese authorities to respect religious freedom and tolerate independent religious organisations and churches and not to put all religious activities strictly under control of the Communist Party. The Applicant stated the pamphlets were regarded by the authorities as anti-government and anti-Communist propaganda materials. The Applicant claimed that on 5 October 2006 Mr Zhang was arrested by the PSB in Zhuhai along with other members of the church. The Applicant claimed that, as a result, he immediately left Zhuhai and moved to Hunan. The Applicant claimed that in Hunan he had a friend, Mr Liang, who was also a member of an underground church called Muyun City Christian Underground Church.

6. The Applicant claimed that in October 2007, when the Communist Party had its national congress in Beijing, the Applicant and Mr Liang and members of the church distributed many pamphlets in similar terms to those that the Applicant claimed to have previously distributed. The Applicant claimed that the pamphlets came to the attention of local authorities.

7. The Applicant claimed that from November 2007 the PSB set up a special investigation group to investigate the source of the pamphlets. He claimed that in the middle of November 2007 he obtained a visa to come to Australia. However, because the Applicant was sure his name was on a blacklist, his family bribed the policeman at the Baiyun airport in Guangzhou to allow the Applicant to leave China on 1 January 2008.

8. The Applicant claimed that on 26 January 2008 he was unable to contact his wife and spoke with Mrs Liang who told him that her husband had been arrested by the Public Security Bureau (“the PSB”) in the middle of January 2008 and that the Applicant had been discovered as a person who organised the distribution of the pamphlets in October 2007.

9. The Applicant also claimed that, on 26 January 2008, he was told by his parents that the PSB had told them the Applicant’s name had been put on a blacklist.

The Delegate’s decision

1. On 11 April 2008, the Applicant attended an interview with the Delegate.

2. On 11 April 2008, 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 Convention.

The Tribunal’s review and decision

1. On 7 May 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. On 12 February 2009, Federal Magistrate Driver remitted the matter to the Refugee Review Tribunal for determination according to law.

2. On 15 April 2009, 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 May 2009 to give oral evidence and present arguments.

3. On 15 May 2009, the Applicant and a witness attended the Tribunal hearing and gave evidence.

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record, the decision of the earlier Refugee Review Tribunal and other materials available to it from a range of sources.

5. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “The Second Tribunal’s decision record sets out the applicant’s claims (CB 196[2]-197[9]), the documents submitted by him or on his behalf (CB 197[10), an outline of the testimony of Rev. Lawrence (CB 199[23]-200[28]) and an outline of the evidence that the applicant gave at the Tribunal hearing (CB 200[29]-205[61]).  

   The Second Tribunal accepted that the applicant was a Christian: CB 207[76]. However, the Second Tribunal rejected the applicant’s other claims for the following reasons:

   a) the applicant was not a member of an unregistered church in China: CB 209[83];

   b) Rev. Lawrence (a witness called by the applicant) gave evidence that he did not know about the applicant's activities as a Christian in China: CB 209[84];

   c) apart from bare assertions from the applicant, there was no persuasive evidence which supported or corroborated the applicant's claims of persecution: CB 209[85]-210[86];

   d) the applicant's claims as to the reasons why he fled from Zhuhai City to the Hunan were implausible: CB 210[87]-[88];

   e) evidence submitted by the applicant suggested that he was working in Zhuhai City which was inconsistent with the applicant's claims that he was being persecuted in Zhuhai City or that he fled to Hunan: CB 210-211[89];

   f) the Second Tribunal rejected the applicant’s claims that the Tribunal was using “Western logic” to test the veracity of his claims: CB 211[92]-212[93];

   g) the Second Tribunal rejected the applicant’s claims in relation to the application of the “one child policy” on the basis that the applicant was able to pay the relevant fines imposed upon him and had established a successful business in China despite the alleged breaches of that policy: CB 212[96]; and

   h) the Second Tribunal rejected the applicant’s claims that he had been unable to present his case well because of poor education and held that the applicant was eloquent and did not appear to be unable or incapable of presenting his case: CB 212-213[97]-[98].

   Accordingly, the Tribunal concluded that the applicant did not have a well-founded fear of persecution for any Convention reason: CB 213[100].”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 19 August 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence and submissions in support, by 23 September 2009. The Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. The Applicant was also directed to give notice to the Court and the First Respondent if he intended to rely on a recording of the Tribunal hearing. That notice was to include the relevant part of the recording, the duration of the recording and to identify the issue to which the recording was relevant. The Applicant was also informed that he would need to provide equipment in order to allow the recording to be played at the hearing. That notice was to be given by 23 September 2009, the same date as the file and serving of any amended application and any further evidence.

3. At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant, headed in his own language, the contact details of legal services providers and interpreting and translation services.

4. On 20 November 2009, the Applicant filed written submissions. However, no other documents were filed by or on behalf of the Applicant in support of his application, including any notice of an intention to rely on a recording of the Tribunal hearing.

5. At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an application filed on 2 July 2009 as follows:

   “1. The RRT’s decision was affected by jurisdictional error as it made findings on illogical ground.

   2. The RRT failed to give me sufficient time to provide additional information.

   3. The RRT did not give sufficient consideration to the applicant’s claims and rejected such claims on no reasonable (sic)”

6. 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 the application generally. The grounds make bare submissions unsupported by particulars.

7. In support of his application, the Applicant sought leave of the Court to play part of the recording of the Tribunal hearing which the Applicant said supported his complaints about the Tribunal hearing.

8. The Applicant said that the part of the recording upon which he wished to rely was only six minutes long and that he had his computer in Court, which would allow the recording to be played and heard.

9. Leave was opposed by the First Respondent on the basis that: the Applicant had not given any notice to the Court or the First Respondent, in accordance with the directions made by the Court on 19 August 2009; the Applicant had had the tapes for 6 months; the Applicant has participated in the Court’s Legal Advice Scheme; the Applicant has filed written submissions; and, the Applicant’s complaint in his written submissions was that he was not given the tapes, rather than that he wanted to tender tapes and rely upon them.

10. However, the Court admitted that part of the recording upon which the Applicant sought to rely. That part of the evidence commenced at 52 minutes 55 seconds and ended at 60 minutes. The compact disc containing that recording was admitted as Exhibit 1A.

11. A fair listening to the Tribunal Member’s exchanges with the Applicant, reveals that the Tribunal Member spoke in a polite, gentle, measured and even tone to the Applicant and gave the Applicant every opportunity to say whatever the Applicant wished in support of his application. The Tribunal Member also offered the Applicant an opportunity to send to the Tribunal post hearing any new information that he wished the Tribunal to consider. The Tribunal Member informed the Applicant that he would be notified of the Tribunal’s decision in two weeks and that he was welcome to send any new information prior to that time.

Applicant’s complaints re Tribunal hearing and decision

1. The Applicant’s oral complaints to this Court in support of the grounds of his application can be summarised as follows:

   i)The Tribunal Member told the Applicant that he could come back with further evidence following the hearing.

   ii)The Tribunal’s summary in its decision record of the exchange it had with the Applicant about Reverend Lawrence giving further evidence, was incorrect.

   iii)The Tribunal was unfair in failing to allow the Applicant’s witness, Reverend Lawrence, to “clarify” his evidence.

   iv)The further two weeks given by the Tribunal post hearing was not sufficient time to gather the further evidence that the Applicant wished to present.

   v)The Tribunal Member affirmed the decision under review because the Applicant did not bring any of his relatives to the hearing to give evidence on his behalf.

   vi)The Tribunal did not provide the Applicant with tapes of the hearing within a reasonable time.

2. The grounds of the application make bare assertions unsupported by particulars. The Applicant’s oral submissions to this Court in relation to his complaints about the Tribunal’s decision are dealt with below and each complaint is bolded for convenience.

3. (i) To the extent that the Applicant told this Court that the Tribunal Member had told him that he could come back after the hearing, the recording does not support that assertion. The Tribunal recording makes clear that the Applicant was offered an opportunity to say anything further he wished at the hearing and to send to the Tribunal any further evidence and information that he wished the Tribunal to consider within the next two weeks. Neither is there any mention in the Tribunal’s decision record of any such offer by the Tribunal. Nor is there any document in the bundle of relevant documents, identified as the Court Book, that suggests any such offer was made to the Applicant. Accordingly, the Applicant’s allegation that the Tribunal Member told him he could come back after the hearing is not made out on the evidence before the Court.

4. (ii) The Applicant also complained that the Tribunal’s summary in its decision record of the exchange it had with the Applicant about Reverend Lawrence giving further evidence was incorrect. The Tribunal record stated that the Applicant said he was willing to go back to his witness, Reverend Lawrence, to ask him to provide further evidence to corroborate his claims.

5. At the heart of the Applicant’s complaint to this Court, is the denial by the Tribunal Member of an opportunity for the Applicant to call Reverend Lawrence to give evidence about what the Applicant had told him about his persecution in China. The Tribunal found that Reverend Lawrence “very clearly and unequivocally told the Tribunal, he does not know about the applicant’s activities as a Christian in China.” The recording of the hearing makes clear that the Tribunal Member endeavoured to explain to the Applicant that Reverend Lawrence had given his evidence and that there would be little point in Reverend Lawrence coming back to give further evidence in support of the Applicant’s claims of alleged persecution in China by reason of his membership of an unregistered church.

6. Whilst not strictly verbatim, in the context of the exchanges the Tribunal had with the Applicant about recalling Reverend Lawrence, referred to below, the Tribunal’s understanding that such a request was made by the Applicant was readily available.

7. In any event, the Applicant’s complaint is somewhat curious where his next complaint to this Court was that the Tribunal should have recalled Reverend Lawrence to clarify his evidence. This complaint is dealt with below.

1. However, even if the Tribunal mistakenly stated in its decision record that the Applicant requested that Reverend Lawrence be recalled, such a complaint is a mistake of fact. As such, it is not capable of establishing jurisdictional error on the part of the Tribunal (Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611 at [138]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [92]).

2. (iii) To the extent that the Applicant complains that the Tribunal unfairly refused the Applicant an opportunity to allow Reverend Lawrence to “clarify” his evidence and give further evidence, such a complaint is not made out. The Applicant’s complaint to this Court was that the Tribunal should have allowed him to speak with Reverend Lawrence after Reverend Lawrence had given evidence and been excused so that he might remind him of what he had told Reverend Lawrence about his alleged persecution in China.

3. The Tribunal Member said that he had spoken with Reverend Lawrence and allowed him to give evidence at the request of the Applicant. As stated above, it appears from the recording that the Tribunal Member understood that the Applicant was seeking to recall Reverend Lawrence.

4. However, the Tribunal Member explained to the Applicant that, if the Applicant spoke with Reverend Lawrence before he gave evidence again, he may tell him what to say and Reverend Lawrence may change his evidence if he was called back. As stated above, the Tribunal told the Applicant that such conduct would not assist the Applicant. The Tribunal had noted in its decision record that Reverend Lawrence stated at the commencement of his evidence that he was only appearing to give evidence in respect of the Applicant’s Australian connections with his church and not about his activities in China. The Tribunal Member also told the Applicant that his case did not rise or fall on the evidence of Reverend Lawrence. The Tribunal Member said that Reverend Lawrence’s evidence was merely one part of the Applicant’s case.

5. It was in that context that the Tribunal Member invited the Applicant to say whatever further he wished in support of his claims and gave the Applicant a further two weeks to provide any new information to the Tribunal in support of his claims.

6. In the circumstances, the weight that the Tribunal Member would be able to give to any such further evidence about what the Applicant may have told Reverend Lawrence about the Applicant’s alleged persecution in China, would be negligible. It would be of so little weight that the Tribunal was well entitled to exercise its discretion to refuse any request by the Applicant to bring Reverend Lawrence back to give further evidence about the Applicant’s claims.

7. (iv) The Applicant complained that two weeks after the hearing was not sufficient time to gather the further evidence that he wished to present. The Tribunal Member put to the Applicant that it had doubts about whether the Applicant was persecuted in China and that the Applicant’s evidence had not convinced the Tribunal otherwise. As is referred to above, the Tribunal gave the Applicant a further two weeks after the hearing to send any information to the Tribunal in support of his review application.

8. There was nothing on the recording that was played to the Court to suggest that the Applicant made any request for further time or that he complained about the time offered by the Tribunal. There is also no mention in the Tribunal’s decision record of any such request made by the Applicant. Further, there is no evidence before this Court of any request made post-hearing by the Applicant for further time to provide any such further evidence to the Tribunal Member. Neither did the Applicant identify to this Court the nature of any evidence he may wish to have provided to the Tribunal or of any attempts made to obtain such evidence.

9. Accordingly, there was no obligation on the Tribunal to give the Applicant any further time after the hearing, let alone another two weeks. The Applicant’s complaint does not demonstrate any error on the part of the Tribunal.

10. (v) The Applicant complained that the Tribunal Member affirmed the decision under review because the Applicant did not bring any of his relatives to the hearing to give evidence on his behalf. The Applicant explained that his relatives were busy and were unable to attend.

11. The Tribunal found that it was significant that the Applicant did not provide testimony from his relatives in Australia to corroborate his claims that he was a member of an independent church in China. The Tribunal stated that:

    “One would have thought that if indeed the applicant was a genuine member of an independent church however small, his sister-in-law who introduced him to a church in Australia, or indeed his brothers whom he claim live in Australia would have been able to provide some form of testimony to assist his claim. In the end, the applicant provided no other evidence apart from bare assertions, leaving the Tribunal with no corroborative information to assist his claims.”

12. The Applicant told this Court that the Tribunal could have sought evidence from relatives and made enquiries itself. Insofar as the Applicant’s affidavit sworn 2 July 2009 asserts that the Tribunal did not seek any particular documents from the Applicant to support his claims, such a complaint does not establish jurisdictional error.

13. It is well established that there is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).

14. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

15. In the circumstances, the Tribunal’s finding was open to it on the evidence before it and for the reason it gave.

16. (vi) The Applicant’s complaint that the Tribunal did not provide him with tapes of the hearing within a reasonable time, such a complaint does not establish jurisdictional error. The second Tribunal hearing was held on 15 May 2009. On 26 May 2009, the Applicant’s migration agent requested copies of the tapes for the hearing. On 27 May 2009, the tapes were sent by the second Tribunal to the Applicant’s migration agent. In the circumstances, there was nothing unreasonable in the Tribunal’s conduct in relation to the provision of the hearing tapes to the Applicant’s migration agent.

17. Accordingly, none of the Applicant’s grounds, complaints or allegations to this Court is made out.

18. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accepted that the Applicant is a Christian and has engaged in Christian activities in Australia. The Tribunal was also prepared to accept that the Applicant had been associated with Christianity for more than a year and may have been brought up as a Christian. However, the Tribunal comprehensively rejected the Applicant’s claims of membership of an unregistered church and of any persecution for that reason. Further, the Tribunal comprehensively rejected the Applicant’s claims of past persecution because of the number of children that he has and his alleged breach of the one child policy. The Tribunal found that the Applicant did not produce any credible evidence to substantiate his claims of any oppression because of the number of children he has. The Tribunal rejected the Applicant’s claims of having fled to other areas of China because of his membership of an unregistered church. The Tribunal noted that country information indicated that members of unregistered churches are likely to attract adverse interest of state authorities and may be subject to persecution.

19. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave, including the adverse credibility findings. 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).

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; heard evidence for the Applicant’s witness and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then 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 the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. 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.

3. 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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  11 December 2009