SZMYI v Minister for Immigration

[2009] FMCA 557

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYI v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 557

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether information about the applicant’s visitor visa obtained by the Tribunal was required to be obtained in accordance with s.424 of the Act.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424; 424(2); 424AA; 424A; 424A(1); 424A(3)(a); 424A(3)(b); 424(3)(ba); 474; pt.8 div.2

SZLPO v Minister for Immigration and Citizenship (2009) FCAFC 51
SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83
SZKCQv Minister for Immigration and Citizenship [2008] FCAFC 119
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24
SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: SZMYI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3038 of 2008

Judgment of: Emmett FM

Hearing date: 19 March 2009

Date of last submission: 5 June 2009

Delivered at: Sydney

Delivered on: 16 June 2009

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent: Mr D. Godwin

Solicitors for the Respondent: Ms Z. McDonald, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3038 of 2008

SZMYI

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 (“the Tribunal”) dated 6 November 2008 and handed down that same day.

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).

3. The Applicant arrived in Australia on 15 January 2008 having departed legally from Fu Yong on a passport issued in his own name and a subclass 676 Tourist (Short Stay) visa issued on 20 December 2007.

4. On 11 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 17 April 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

6. On 14 May 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. 

7. On 6 November 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa. 

8. On 21 November 2008, 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, 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.”

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 he stated that he feared persecution by the Chinese authorities for his participation in Christian religious gatherings.

2. The Applicant claimed that in October 2004 he was introduced to a house church and commenced regular Christian practice. The Applicant claimed that, on 19 November 2006, police arrived at a house church gathering and arrested the Applicant and others. The Applicant claimed that he was beaten and interrogated to the point of collapse. The Applicant claimed he was kept in custody for 15 days before his wife paid an amount for his release. Following his release the Applicant stated he was required to “report to the police often”. The Applicant claimed his wife and daughter had also been discriminated against and that with the assistance of a fellow worshipper’s friend he obtained a visa in December 2007 and fled China in January 2008.

The Delegate’s decision

1. On 17 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.

2. The Delegate had regard to country information that disclosed that persons involved in anti-government activities were likely to face difficulties in obtaining a passport by legal means. The Delegate noted that the Applicant left China legally on a valid passport, issued in his own name. The Delegate found the Applicant’s claims to be uncorroborated and found the information provided by the Applicant regarding his involvement in the underground church as “scant”.

The Tribunal’s review and decision

1. On 14 May 2008, the Applicant lodged an application with the Refugee Review Tribunal for review of the Delegate’s decision. The Applicant provided further documents in support of his review application.

2. On 22 May 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 27 June 2008 to give oral evidence and present arguments.

3. On 27 June 2008, the Applicant attended the hearing before the Tribunal at which he gave evidence.

4. Following the hearing, on 5 September 2008, the Applicant provided the Tribunal with a letter from Mr L in support of his application. The Tribunal found the Applicant’s application to be similar to that of Mr L, also an applicant before the Refugee Review Tribunal. The Tribunal invited the Applicant to attend a further hearing on 8 October 2008 in order to explore its concerns with the Applicant about, inter alia, the similarity of his claims to those of Mr L. The Tribunal noted that the Applicant said he may provide a statement from Mr L. The Tribunal gave the Applicant a further two weeks to respond in writing.

5. On 31 October 2008, the Applicant responded to the Tribunal’s concerns and claimed not to have known Mr L prior to arriving in Australia.

6. The Tribunal did not accept his assertion that he did not know Mr L prior to arriving in Australia and found that the Applicant deliberately gave incorrect information to the Tribunal about his relationship to Mr L.

7. The Tribunal rejected the Applicant’s claims of having been a member of an underground church in China or having been arrested or detained for that reason. The Tribunal found the Applicant’s evidence to be internally inconsistent and vague.

8. The Tribunal put to the Applicant independent country information before it about difficulties faced by persons of interest in China seeking to depart legally on passports in their own names.

9. The Tribunal found the Applicant to have fabricated his claims regarding his arrest and detention for his religious beliefs and comprehensively rejected all the Applicant’s claims of relevant conduct in China.

10. The Tribunal found the Applicant’s behaviour had been “deliberately tailored to support his protection visa application” and was not satisfied that the Applicant had attended church in Australia otherwise than for the purpose of strengthening his refugee claims.

11. The Tribunal affirmed the decision under review.

The proceeding before this Court

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

2. On 3 February 2009, the Applicant attended a directions hearing before this Court 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 by way of affidavit, including any transcript, as well as written submissions in support of his review application.

3. At the directions hearing, the Court referred the Applicant to the NSW RRT Legal Advice Scheme for free legal advice. The Applicant has participated in the NSW RRT Legal Advice Scheme and received advice. The Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services.

4. At the commencement of the hearing before this Court, the Applicant confirmed that no further application, evidence or submissions were filed by him. The Applicant confirmed that he relied on the grounds contained in the application filed on 21 November 2008 as follows:

   “1. RRT did not consider my application fairly. I attend church to worship God. It is not to strengthen my application. RRT did not weigh my evidence. They failed to assess my risk to return to China.

   2. Procedural Fairness has been denied. RRT did not use favourable cases to my application.”

5. 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 meaningful or relevant submission in support of either of the grounds or in support of his application generally.

Ground 1

1. Ground 1 makes the bare assertion that the Tribunal did not consider the Applicant’s application “fairly”. Ground 1 was not supported by particulars, evidence or submissions.

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims and explored those claims with the Applicant at two hearings.

3. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 3 February 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

4. A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also noted that it put to the Applicant independent information that indicated that checks would have been made with the Public Security Bureau during the processing of the Applicant’s passport. Having regard to that information, the Tribunal did not accept that the Applicant would have been able to obtain a new passport without difficulty if he had been recently released from detention and had been required to report regularly to police.

5. The Tribunal also explored with the Applicant the documents he provided in support of his claims and put to the Applicant concerns it had about the genuineness of various documents. The Tribunal noted the Applicant’s responses and invited the Applicant to attend a second hearing to further address the Tribunal’s concerns.

6. At the further hearing, the Tribunal put to the Applicant the concerns it had about the different information provided by the Applicant as to his address and occupation in China on the Applicant’s protection visa application and visitor visa application.

7. A fair reading of the Tribunal’s decision record makes clear that the Tribunal identified in great detail the country information to which it had regard relating to the status of religious freedom and house churches in China and passport and exit procedures.

8. The Tribunal found that the Applicant’s knowledge of Christianity was not consistent with his claim to have attended Christian gatherings since 2004. The Tribunal found the Applicant’s knowledge to be “vague and lacking in detail” and noted that it took into account the Applicant’s assertion that he is not well educated and so his capacity to read and understand the Bible is limited. The Tribunal provided detailed examples of concerns it had about the Applicant’s limited knowledge of Christianity to support its findings.

9. The Tribunal also found the Applicant’s evidence to be internally inconsistent in various respects, including whether he attended gatherings following his alleged release from detention.

10. The Tribunal also rejected the Applicant’s evidence about the circumstances in which he arrived in Australia having regard to movement records and the Applicant’s visitor visa application, which indicated that the Applicant was travelling with Mr L, whom the Applicant claimed not to have met until after his arrival in Australia. The Tribunal found that the Applicant deliberately gave incorrect information to the Tribunal about his relationship with Mr L leading the Tribunal to find the Applicant is not a witness of credit.

11. The Tribunal noted in its decision record that it put to the Applicant information obtained from the Applicant’s visitor visa that was inconsistent with the oral evidence given by the Applicant to the Tribunal. In particular, the Tribunal put to the Applicant that it had looked at the Applicant’s movement records and visitor visa application which appeared to disclose that the Applicant had travelled to Australia and then to Sydney with Mr L. The Tribunal also noted that different information was provided by the Applicant in his protection visa application to the information he had provided in his visitor visa application.

12. In relation to the obtaining of the Applicant’s visitor visa, the bundle of relevant documents, marked Exhibit 1R, discloses that on 7 August 2008 an officer of the Tribunal wrote to the Refugee Review Tribunal Liaison Unit on behalf of the Tribunal Member requesting a copy of the Applicant’s visitor visa file. The request for the Applicant’s visitor visa file was not additional information that was required to be given to the Applicant only in accordance with s.424 of the Act. The Full Court of the Federal Court of Australia in SZLPO v Minister for Immigration and Citizenship (2009) FCAFC 51 (“SZLPO”) held that s.424(2) of the Act does not apply to an invitation to a person to supply a document to a tribunal (at [157]). Further, the Tribunal’s request for the documents was not a request that was made to a person who had previously given information to the Tribunal and therefore was not “additional information” for the purposes of s.424(2) of the Act ( SZLPO at [159]). Further, the Full Court, in what appears to be an obiter comment, states that their Honours are “inclined to think the word “person” in s.424(2) means a natural person” (at [163]) which would, in the minds of Their Honours, provide a further ground for distinguishing SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 and SZKCQv Minister for Immigration and Citizenship [2008] FCAFC 119.

13. Having regard to its comprehensive rejection of the Applicant’s claims, the Tribunal placed no weight on documents provided by the Applicant in support of those claims. The Tribunal found the Applicant had fabricated his claims of relevant conduct and persecution in China. The Tribunal found that the Applicant attended Padstow Chinese Congregational Church in Australia only to strengthen his claim to be a refugee. The Tribunal correctly noted that, pursuant to s.91R(3) of the Act, it must disregard that conduct.

14. The Tribunal did not accept that the Applicant would practice Christianity in an underground church if he were to return to China, and was not satisfied that there is a real chance that the Applicant will be persecuted in China for reason of his religious belief or for any Convention-related reason.

15. A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its 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).

16. Otherwise, Ground 1 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J).

17. Accordingly, Ground 1 is rejected.

Ground 2

1. Ground 2 asserts that the Applicant was denied procedural fairness and that the Tribunal did not use “favourable cases” in considering the Applicant’s claims.

2. Again, these assertions were not supported by particulars, evidence or submissions.

3. A fair reading of the Tribunal’s decision record makes clear that the information to which the Tribunal had regard in making its adverse credibility findings and affirming the decision under review was information provided to the Tribunal by the Applicant for the purposes of the review, independent country information and other information given by the Tribunal to the Applicant in accordance with s.424AA of the Act.

4. In relation to the information given by the Applicant in support of his review application, such information is excluded from the obligations of s.424A(1) of the Act by reason of s.424A(3)(b) and s.424(3)(ba) of the Act. In relation to the country information to which the Tribunal had regard, such information is excluded from the obligations of s.424A of the Act by reason of s.424A(3)(a) of the Act.

5. In relation to the inconsistencies in the Applicant’s evidence to which the Tribunal had regard, such inconsistencies are no more than the thought processes of the Tribunal. The Tribunal’s thought processes are not information for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 325 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ in the majority; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [47] per the Court).

6. The Tribunal invited the Applicant to attend two separate hearings. A fair reading of the Tribunal’s decision record makes clear that the purpose for the second hearing was to provide a further opportunity to the Applicant to consider and address concerns raised by the Tribunal at the first hearing.

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant squarely at the hearings the concerns it had with the Applicant’s credibility. In the circumstances, the Applicant was aware his credibility was an issue (SZBEL per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [35], [37] and [47]).

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s claims of relevant conduct in Australia and accepted that the Applicant had engaged in such conduct. However, the Tribunal was not satisfied that such conduct was entered into other than for the purpose of strengthening the Applicant’s claims to be a refugee. Accordingly, the Tribunal correctly noted that it disregarded those activities pursuant to s.91R(3) of the Act.

3. In the absence of any particular by the Applicant of a denial of procedural fairness, for the reasons referred to above a fair reading of the Tribunal’s decision record and the documents provided in Exhibit 1R do not support such an allegation.

4. In relation to the Applicant’s assertion that the Tribunal did not use favourable cases to his application, it is not for the Tribunal to make out the Applicant’s case for him. It is for the Applicant to satisfy the Tribunal, as the relevant decision maker, that he meets the criteria required for being a refugee. If the Tribunal, as the relevant decision maker, is not so satisfied, it must refuse the Applicant a protection visa, pursuant to s.65(1) of the Act.

5. Accordingly, Ground 2 is not made out.

Conclusion

1. 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; and had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence at two hearings and invited the Applicant to comment at the hearings and later in writing. The Tribunal had regard to the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. 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 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 sixty-five (65) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  16 June 2009