SZMWK v Minister for Immigration
[2009] FMCA 68
•6 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMWK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 68 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.91R, 424A, 424AA |
| Aala v Minister for Immigration [2002] FCAFC 204 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NADR v Minister for Immigration [2002] FCAFC 167 Re Minister for Immigration: ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration [2006] HCA 63 SZBYR v Minister for Immigration (2007) 235 ALR 609; (2007) 81 ALJR 1190; (2007) 96 ALD 1; [2007] HCA 26 SZJGV v Minister for Immigration (2008) 247 ALR 451; 102 ALD 226; [2008] FCAFC 105 SZLQD v Minister for Immigration [2008] FCA 739 SZLTC v Minister for Immigration & Anor [2008] FMCA 384 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 471 VCAK of 2002 v Minister for Immigration [2004] FCA 459 W389/01A v Minister for Immigration (2002) 125 FCR 407 WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 |
| Applicant: | SZMWK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2735 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 6 February 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2735 of 2008
| SZMWK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on
30 September 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. The background to the applicant's claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions, filed on 23 January 2009. I adopt as background for the purposes of this judgment paragraphs 2 through to 9 of those submissions:
The applicant, a citizen of the People’s Republic of China, arrived in Australia on a passport issued in an assumed name. He claimed to fear harm from Chinese authorities because he is a Christian who attended an underground Church. The applicant claimed that on Christmas day 2007 plain clothes police broke in during a service at his mother’s house and arrested and detained several fellow parishioners, including his family members however, he managed to avoid arrest. The applicant additionally claimed to fear harm from Chinese authorities if returned to China because he had travelled on a false passport and if returned, would be identified as a failed asylum seeker.
On 22 April 2008 the applicant lodged an application for a protection visa. Court Book (CB) 1-26. He provided statements dated 27 April 2008 (CB 27) and 9 May 2008 (CB 30-31) in support of his claims. The applicant was interviewed by a delegate of the Minister on 19 May 2008 and, in a decision dated 27 June 2008, the delegate refused the application for a protection visa: CB 34-46. The delegate concluded that the applicant was not a committed Christian and was not satisfied that he had been persecuted as a result of his religion. The Tribunal therefore found that the applicant’s chances of persecution on account of his religion to be at best remote and not well-founded: CB 45.
On 15 July 2008 the applicant lodged an application with the Refugee Review Tribunal (CB 47-50) seeking review of the decision of the delegate. On 30 July 2008 the applicant was validly invited to attend a hearing before the Tribunal (CB 53-54) and in a letter dated 1 August 2008, was advised that the hearing had been re-scheduled: CB 55-56. The applicant completed a response to the hearing invitation (CB 57). On 28 August 2008, he attended a hearing before the Tribunal (CB 73-74) where he gave oral evidence and provided the Tribunal with a copy of the passport on which he entered Australia, issued in an assumed name: CB 58-72.
The Tribunal found the applicant’s knowledge of Christianity was ‘less than rudimentary’ and was not satisfied that he was a member of an underground church or of any sect of Christianity. For example, the applicant did not know who Jesus Christ was, what Christmas signified, the difference between the Old and New testaments or what baptism was. The Tribunal therefore found that the applicant was not a Christian as he had claimed: CB 89.5. The Tribunal was also not satisfied that the applicant’s family members were Christians and did not accept that he or his family participated in or attended any Christian services of any kind in China or would be imputed to have done so: CB 89.6. The Tribunal therefore did not accept that the applicant had been harassed by police, or that members of his family or friends had been arrested or were of any interest to the Chinese authorities: CB 89.8.
Nor was the Tribunal satisfied that the applicant had attended church services in Australia. It was therefore not required to consider whether the applicant had engaged in conduct for the purpose of strengthening his claim for refugee status.[1] The Tribunal found that even if the applicant had attended Church in Australia, it was not satisfied that he was a Christian. Accordingly, it could not be satisfied that this was engaged in otherwise than for the purpose of strengthening his claim for refugee status and therefore it was required to disregard that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”): CB 90.1.
As the Tribunal found that the applicant was not a Christian, it concluded that he would not attend church services in China and therefore would not fear persecution for doing so. Although it accepted that the applicant had travelled on a false passport, the Tribunal observed that the applicant had departed China on his own passport before swapping it in transit. The Tribunal was also satisfied that any penalty that may be imposed as a result of the applicant travelling using an illegal passport would be in accordance with the law of general application within China and therefore not persecution for a Convention reason.[2]
Additionally, although the Tribunal accepted that the applicant’s employment opportunities may be negatively affected if it became known by Chinese authorities that he was a failed asylum seeker, the Tribunal was not satisfied that this would amount to persecution within the meaning of the Convention: CB90.5. Such findings of fact are uniquely within the jurisdiction of the Tribunal[3] and a function of the Tribunal par excellence.[4]
Accordingly, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason: CB 90.8.
[1] SZJGV v Minister for Immigration & Citizenship (2008) 247 ALR 451; 102 ALD 226; [2008] FCAFC 105 at [22]
[2] Aala v Minister for Immigration [2002] FCAFC 204
[3] NADR vMinister for Immigration [2003] FCAFC 167 at [9]
[4] ReMinister for Immigration: ex parte Durairajasingham (2000) 168 ALR 407 per Mc Hugh J at 423 [67]
These proceedings commenced with a show cause application, filed on 23 October 2008. The applicant was given the opportunity to file and serve an amended application and to provide evidence in support of it, but no amended application has been filed. I received a short affidavit, filed in support of the original application. The facts in that affidavit are uncontroversial. The application contains seven grounds:
1. The Tribunal failed to act judicially and afford procedural fairness.
2. The Tribunal failed to comply with s.424AA of the Act.
3. The Tribunal failed to comply with s.424A of the Act.
4. The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims.
5. The Tribunal failed to consider the applicant’s claims.
6. The Tribunal failed to investigate the applicant’s genuine claims.
7. The Tribunal failed to comply with s.91R(3) of the Act.
Particulars
1. The Tribunal did not [centralise] my claim and correctly identify my well found fears of persecution on the grounds of religion if forced to return to PRC.
2. The Tribunal didn’t consider … my claims thoroughly. If I am forced to return to PRC, I will be … a person of interest to the PRC authorities on the account of my religion.
3. The Tribunal didn’t consider all my claims.
4. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal ought to use [all the] information for matter of reasoning and evaluation of my case for protection visa.
5. The Tribunal did not use the most updated country information to weigh against my case where the country information quoted was out of date.
6. The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well-founded fear of persecution for a Convention reason on the grounds of religion.
I received as evidence the court book, filed on 19 November 2008. The applicant complained that he had not received the court book. On the basis of what I was told from the Minister's solicitor from the bar table, I am satisfied that the court book was sent by post to the applicant at his address of service on or about 19 November 2008. Three letters were sent by the Minister's solicitors to the applicant at that address. The applicant conceded receipt of two of them. There is no explanation as to why the third letter containing the court book was not received. I determined that the applicant was not disadvantaged by late receipt of the court book because, with the exception of two documents of no consequence, he would have seen previously all of the documents contained in it.
I gave the applicant the opportunity to make oral submissions in support of his application. He had not taken up the opportunity given to him to file and serve written submissions. He declined to say anything in support of his application. The Minister's submissions deal with the grounds of review in the show cause application. I agree with those submissions and adopt them, with minor amendments, for the purposes of this judgment:
In his application filed on 23 October 2008, the applicant raised seven grounds. Particulars provided in support of the seven grounds of review repeat the various grounds and otherwise seek impermissible merits review. Each ground is addressed below.
The first ground asserts that the Tribunal ‘failed to act judicially and afford procedural fairness’. In the absence of any particulars to make this ground meaningful it cannot succeed. The Tribunal validly invited the applicant to attend a hearing which he subsequently attended and gave oral evidence. Also, during the course of the hearing the Tribunal raised with the applicant the concerns that it had with his evidence so that he was clearly on notice of the determinative issues on the review. In particular, the Tribunal put to the applicant that it was having difficulty accepting his claims to be a Christian or to have attended an Underground Church, in view of the fact that he was unable to provide meaningful detail about the Church or even Christianity: CB 87.3. As the applicant was given the opportunity to address these concerns at the hearing, the Tribunal has fulfilled its obligations under s.425 of the Migration Act.[5]
The second and third grounds respectively assert that the Tribunal failed to comply with s.424AA and s.424A of the Migration Act. Section 424AA is not mandatory. The section enables the Tribunal, if it so chooses, to orally give to an applicant particulars of any information which the Tribunal considers would be part of the reason for affirming the decision under review.[6] ‘Information’ for the purpose of s.424AA has the same meaning as in s.424A.[7] There can be no breach of s.424AA in the absence of s.424A being engaged by the information concerned. This means that any such information must not only fall within s.424A(1) but also not be excluded by s.424A(3). The Tribunal decision was not based on information within the meaning of the section. The Tribunal affirmed the decision of the delegate essentially on the basis of the view it took of the facts, specifically the adverse view it formed of the applicant’s credibility. This was not ‘information’ for the purpose of s.424A because ‘information’ is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.[8] Further, the evidence given by the applicant to the Tribunal falls within the exception in s.424A(3)(b). For the same reasons, s.424AA was also not enlivened and no obligation arose for the Tribunal to disclose to the applicant, either in writing or orally, particulars of information which would be the reason or part of the reason for affirming the decision under review. As neither of these sections were enlivened, no breach can be established.
The fourth ground complained that ‘the Tribunal did not take into account certain relevant considerations and integers central to the applicant’s claims’. It is clear from the Tribunal’s reasons that it considered in detail each of the applicant’s claims and provided logical and cogent reasons for why it did not accept those claim. In the absence of meaningful particulars identifying the considerations and particulars the Tribunal is alleged to have failed to consider, this ground cannot be made out and must fail.
Similarly, ground five which complained that ‘the Tribunal failed to consider the applicant’s claims’ must also fail.
In ground six it is alleged that ‘the Tribunal failed to investigate the applicant’s genuine claims’. However, the Tribunal is under no obligation to undertake investigations. It was for the applicant to place such material as was necessary to persuade the Tribunal of his claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant’s claims and has no duty to consider utilising such permissive statutory powers as it had which might enable it to investigate.[9] This ground must fail.
Finally, the applicant asserts that the Tribunal ‘failed to comply with s.91R(3) of the Act’. Yet the Tribunal rejected the applicant’s claim to have attended church in Australia: CB 90.1. There was therefore no conduct within Australia to disregard and the Tribunal was not required to consider the applicant’s motive for the alleged conduct.[10]
In relation to the applicant’s claimed fear to return to China because he had travelled on a false passport and would be identified as a failed asylum seeker the Tribunal found on the applicant’s own evidence that he departed China on a passport issued in his own name and it was not until after he had left China that he relied upon a false passport: CB 90.5. Without making a finding as to whether the Chinese authorities would be aware of the applicant’s use of a false passport, the Tribunal’s finding that any sanction that might be imposed by the authorities as a result would be as a consequence of a law of general application and therefore not Convention-related persecution is a complete answer.
The Tribunal additionally found on the basis of independent country information that any penalty arising from the Chinese authorities becoming aware of his claim for asylum would not amount to persecution within the meaning of the Convention. Accordingly, the Tribunal concluded that no sur place claims arose as a result of the applicant travelling outside of China on a false passport or lodging his protection visa application. Such findings are findings of fact and were reasonably open to the Tribunal on the evidence before it. Findings of fact, including findings on credibility are uniquely within the jurisdiction of the Tribunal[11] and there is no error of law let alone a jurisdictional error in the Tribunal making a wrong finding of fact.[12] As the applicant was found not to have attended church services in Australia and it was not claimed that he engaged in other Christian or religious activities in Australia, a sur place claim does not arise. Accordingly, the Tribunal was not required to consider whether the applicant had a well founded fear of persecution on this basis. No breach of s.91R(3) has been identified and none is apparent.
[5] SZBEL v Minister for Immigration [2006] HCA 63 at [42]-[44]
[6] SZLQD v Minister for Immigration & Citizenship [2008] FCA 739 per Marshall J at [12]
[7] SZLTC v Minister for Immigration & Citizenship [2008] FMCA 384 per Driver FM at [18]
[8] SZBYR v Minister for Immigration & Citizenship(2007) 235 ALR 609; (2007) 81 ALJR 1190; (2007) 96 ALD 1; [2007] HCA 26; at [18] citing VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 471 at 477
[9] VCAK of 2002 v Minister for Immigration [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v Minister for Immigration (2002) 125 FCR 407 at [74]-[78]
[10] SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 at [22]
[11] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
[12] Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137]
Neither, on my own reading of the material, is there any arguable case of jurisdictional error by the Tribunal. This was a simple matter for the Tribunal to resolve. The applicant claimed to be a Christian, but he displayed no knowledge of Christianity. His claim was not believable and he was not believed. The Tribunal decision turned on its disbelief of the applicant's claims.
The Tribunal only had regard to information provided to it by the applicant for the purposes of the review, information previously provided by the applicant to the department and country information. There was, in my view, nothing requiring disclosure pursuant to s.424A of the Migration Act, although it appears from what is set out at CB88 that the Tribunal may have purported to have gone through a process of disclosure pursuant to s.424AA of the Migration Act. The Tribunal does not commit any error by exceeding its disclosure obligations.
Further, the Tribunal did not accept that the applicant had engaged in asserted conduct in Australia relating to religious observences. In the circumstances, in s.91R(3) of the Migration Act was not enlivened. The Tribunal's reference to that section simply covered the possibility that the Tribunal might be wrong in rejecting the fact of the applicant's claimed activities in Australia.
Also, on his own account, the applicant left China legally on his own passport, and in the circumstances it was unnecessary for the Tribunal to consider whether the applicant might be punished on return to China for breaching Chinese law concerning illegal departure. Nevertheless, the Tribunal considered the possibility that he might be punished if he had departed the country illegally. In doing so, the Tribunal was simply being cautious and no error is disclosed.
I find that no arguable case of jurisdictional error has been demonstrated by the applicant or appears from the available material. Accordingly, I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
Costs should follow the event in this case. The Minister seeks scale costs of $2,500. The applicant did not wish to be heard on costs. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application in the sum of $2,500 in accordance with rule 44.15(1), and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 February 2009
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