SZMYL v Minister for Immigration

Case •

[2009] FMCA 1234

•

15 December 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMYL v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1234

MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZMYL”.
Migration Act 1958 (Cth), ss.91R(3), 424A, 425, 427
Abebe v The Commonwealth of Australia [1999] HCA 14
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40
Minister for Immigration, Local Government & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Applicant: SZMYL
First Respondent:    MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent:    REFUGEE REVIEW TRIBUNAL
File number: SYG 3053 of 2008
Judgment of: Lloyd-Jones FM
Hearing date: 14 April 2009
Delivered at: Sydney
Delivered on: 15 December 2009

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of a Fuqing interpreter
Counsel for the Respondents: Ms E. Warner-Knight (solicitor)
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application filed on 21 November 2008 is dismissed.

  2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3053 of 2008

SZMYL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

  1. The applicant is a 35 year old married man from Fujian province in the People’s Republic of China. His wife and two children remain in China. He states that he is a Christian and has worked as a farmer all his life.

  2. The applicant claims that his parents and grandparents are all Christian.  The family home was one of the main gathering places for the village and he and his father organised secret bible study groups there. In 1980 his father applied for the family church to be registered. This was refused and since then they were regarded as an anti-government religious cult.  The applicant claims that from that point, they were watched by the local government. 

  3. The applicant joined a church cell group in 2005.  He claims that during this time he was constantly watched by the Public Security Bureau and the Religious Administration.  The applicant claims that in 2007 he was arrested by the police while attending church.  He claims he was detained for over a month, beaten, given electric shock and knocked unconscious.  The applicant was then sent to hospital where he was treated for a collapsed lung and burns.  He claims his passport was taken from him and he continued being surveyed.

  4. The applicant’s family was concerned and sought help for him to leave China.  The applicant claims he paid a bribe and obtained a passport and visa for Australia.

  5. The applicant arrived in Australia on 25 March 2008 and applied to the Department of Immigration for a Protection (Class XA) visa on 24 April 2008.  A delegate of the Minister for Immigration refused to grant the visa on 11 July 2008 and the applicant was notified of this on the same date.  On 12 August 2008, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.  On 28 October 2008, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.  It is the Tribunal decision of Catherine Carney (reference number 0805064) which is the subject of these proceedings.

  6. A Court Book (“CB”) was prepared and filed by the first respondent’s solicitors on 23 December 2008 and is marked Exhibit “A”. This document was read and is the only evidence before the Court.

Tribunal decision

  1. I rely on the written submissions prepared by Ms Warner Knight, solicitor for the first respondent, as a convenient summary of the Tribunal’s decision.  The Tribunal found that the applicant was not a witness of credit on the basis that his evidence at the hearing held on 7 October 2008 was inconsistent and confused.  He did not answer the questions put to him by the Tribunal member and instead recited from his prepared statement in a rote fashion.  The Tribunal did not accept that the applicant was, or would be perceived to be, a Christian, a member of an underground church or a participant in any activities of an underground church in China.  He was unable to provide any information about Christianity or answer basic questions about Christianity or the Bible.  The Tribunal did not accept that the applicant would practice Christianity if he returned to China.

  2. The Tribunal also did not accept that the applicant was detained or harassed, nor did it accept his explanation that he was able to leave China legally because he was only in danger at a local level. The Tribunal did not accept that the applicant had to pay extra money to obtain his passport. The Tribunal was not satisfied that the applicant had a real commitment to Christianity and found that if he attended the Anglican church in Parramatta, it was simply to strengthen his claim for refugee status. Therefore the Tribunal disregarded the conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (“the Act”).  The Tribunal did not place any weight on the church pamphlets submitted by the applicant as they could have been collected from outside the church.  Accordingly, it was not satisfied that the applicant had suffered past persecution or had a well-founded fear of persecution for a Convention reason if he returned to China.

Grounds

  1. At the first Court date of 9 December 2008, I granted the applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 9 February 2009.  This order was not complied with at the time of the final hearing.  Consequently the grounds of review relied upon are those which appear in the original Application filed on 21 November 2008 as follows:

    1. The Tribunal failed to act judicially and afford procedural fairness.

    2. The Tribunal failed to investigate the applicant’s genuine claims;

    3. 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 ground of religion.

    4. The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims;

    5. The Tribunal failed to comply with s.424A of the Act;

    6. The Tribunal failed to comply with s.91R(3) of the Act.

Particulars

1. 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 the all information format of reasoning and the valuation of my case for Protection visa.

2. The Tribunal did not centralise the applicant’s claims of incorrectly identifying the applicant’s well found fears of persecution on the grounds of political opinion if returned to PRC.

3. 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 the all information of matters of reasoning and the valuation of my case for Protection visa.

4. The Tribunal did not use the most up to date country information by way against my case where the country information quoted was out of date.

Consideration

Ground one

  1. This ground contains a general assertion that the Tribunal failed to act judiciously and to afford procedural fairness. The particulars contained in the application do not appear to have any reference or relevance to this ground of review. The alleged failure to act judicially is not identified in the particulars, written or oral submissions. Similarly the alleged failure to afford procedural fairness is not identified in the particulars or by oral or written submissions. On a fair reading of the Tribunal decision it is not apparent that either of these claims can be supported. The relevant requirements of Part 7, Div. 4 of the Act have been complied with. There is nothing on the face of the decision, which is the only material before the Court, to suggest that the Tribunal member has not acted judiciously. Consequently this ground should be dismissed.

Ground two

  1. The claim that the Tribunal failed to investigate the applicant’s genuine claims is made without particulars, oral or written submissions.  The four particulars listed under that sub-heading in the grounds of review do not appear to have any relevance to this claim.  I agree with the written submissions of Ms Warner Knight that on review of an adverse decision by a delegate of the Minister, it is for the applicant to satisfy the Tribunal that the statutory elements have not been complied with: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 596.

  2. The Tribunal decision under the heading “Claims and Evidence” indicates that the applicant appeared before the Tribunal on 7 October 2008 to give evidence and present arguments.  It indicates that the Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Paragraphs 37 to 54 inclusive of the decision summarises the oral evidence given by the applicant during the hearing.  This is the only material before the Court with respect to the giving of the evidence.  Orders were made at the first Court date providing the applicant with an opportunity to file and serve additional affidavit material by 9 February 2009, which would include any transcript of the Tribunal hearing.  Although the applicant would not be aware of this issue from the Order, he has had the benefit of legal advice from a member of the legal advice panel. 

  3. The applicant has not availed himself of the opportunity to place a transcript verified by affidavit before the Court.  The Tribunal indicated that it was not satisfied that the applicant’s claims were true which it summarised at para.57:

    57. The Tribunal did not find the applicant to be a witness of truth.  At the oral hearing the applicant’s evidence was inconsistent and confused.  The applicant did not answer questions put to him by the Tribunal and instead recited his statement in a rote fashion. 

  4. Sections 425 and 427 of the Act confer power on the Tribunal to obtain information but do not impose obligation or duty to exercise such power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 at [43] per Gummow and Hayne JJ:

    Whilst s.427 of the Act confers powers on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to enquire.

  5. The Tribunal has no general duty to make its own enquiries in order to make an applicant’s case: Abebe v The Commonwealth of Australia [1999] HCA 14 at [187] per Gummow and Hayne JJ:

    ...framed in this way, the submission may, perhaps assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in a position of a contradictor of a case being made by the applicant.  Such assumptions, if made, would be wrong.  The proceedings before the Tribunal are inquisitorial and the Tribunal is not in a position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well founded fear of persecution for a convention reason.  The Tribunal must then decide whether the claim is made out.

  6. The Tribunal’s decision indicates that the member asked the applicant questions at the hearing and, on the evidence before it, was not satisfied that his claims were true.  It was not under any further obligation to initiate enquiries in respect of the applicant’s claims.  This ground cannot be sustained and should be dismissed.

Ground three

  1. Ground three does not identify any form of jurisdictional error but rather cavils with the merits of the decision.  The Tribunal set out the applicable law at paras.6 to 18 of the decision.  Article 1A(2) of the Refugees Convention is reproduced at para.9.  The test as to whether the applicant has a well-founded fear of persecution in China on the ground of religion is clearly distilled from those paragraphs and these are commonly cited in most Tribunal decisions and expressed in unobjectionable terms.  After considering the claims and evidence put forward by the applicant and conducting a review of recent independent country information, the Tribunal found that the applicant did not face a real chance of persecution now or in the reasonable foreseeable future on the basis of his religious beliefs if he returned to China. 

  2. The Tribunal did not limit the review to religion but also considered each element of the definition of “refugee” in the Convention as follows:

    75. Having regard to all the incidents and claims reported by the applicant, singularly and cumulatively, and based on the evidence currently before it, the Tribunal is not satisfied that all the statutory elements for the grant of a Protection visa have been made out.  Again, based on evidence currently before it, the Tribunal is not satisfied that the applicant suffered past persecution or that he faces a real chance of being persecuted now or in the reasonable foreseeable future if he returns to China in relation to his race, his religion or his nationality, or to an alleged, or imputed, political opinion or membership of a particular social group.  The Tribunal is not satisfied, after considering all the evidence before it, that the applicant has a well founded fear of persecution. 

  3. Clearly a merits review is not available in this Court: Minister for Immigration, Local Government & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:

    …any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision.

  4. A merits review is an assessment of the appropriateness of a decision as distinct from judicial review which focuses on the lawfulness of the earlier decision.  Judicial review asks whether the decision maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances.  Merits review provides a complete rehearsal of all the issues relevant to the application.  Ground three of this application does no more than cavil with the merits of the decision and consequently cannot be the subject of review by this Court and should be dismissed.

Ground four

  1. The claim made by the applicant is that he fears persecution in China on the basis of his involvement with the underground Christian church.  The applicant claims that since 2000 when he joined a new group within the underground church, he was constantly questioned and investigated by the Public Security Bureau and government authorities.  In 2007 the applicant and other church members were arrested and detained for over a month and tortured. The injuries he sustained during this detention required hospitalisation for treatment of a collapsed lung and burns. The Tribunal considered the applicant’s claimed practice of Christianity in the underground church while in China and his subsequently claims of his attendance at church in Australia after his arrival. The Tribunal considered whether the applicant would be perceived to be a Christian by the Chinese authorities. 

  2. Particular two of the Application asserts that the Tribunal did not correctly identify the applicant’s fear of persecution on the ground of political opinion.  This does not accord with the balance of the “Claims and Evidence” put before the Tribunal by the applicant.  The pleading of this ground appears to be misconceived.

  3. The Tribunal finding quite clearly states that the applicant did not fear harm on the basis of a political opinion and records this finding as follows:

    68. The Tribunal put to the applicant the country information regarding exit procedures.  The applicant could not adequately explain how he was able to leave China to an international airport and not come to the attention of the authorities.  The applicant at first stated that he was able to leave as he was not in danger as he did nothing wrong and was not political.  When the Tribunal then pointed out that if he was not in danger he could return to China, he stated that the danger was at a local level.  When the Tribunal queried him further about the danger he gave confused evidence about him not being able to move within China but being able to exit China on a passport in his own name.

  4. Insofar as involvement in an underground church may result in him being imputed with a political opinion in opposition to the Chinese government, the Tribunal found that the applicant was not involved with the underground church and accordingly found that he would not be in any danger of persecution due to such involvement.  Its findings clearly state this:

    69. The Tribunal finds that the applicant will not be imputed to be a Christian and as the Tribunal has found the applicant was not a Christian in China it follows that the Tribunal is satisfied that the applicant did not participate in any … with Mr Lin or help organise any gatherings with Mr Lin.  The Tribunal finds that the applicant will not be in any danger of persecution due to any involvement with the underground church, his family or Mr Lin.

  5. In the absence of any particulars, oral or written submissions as to which integers the Tribunal failed to consider, this ground cannot be sustained.  The claims made by the applicant were fully considered by the Tribunal and no other claim appears to have been made.  Upon review of the Court Book, it is not apparent that the applicant is suggesting any other claim and this ground should be dismissed.

Ground five

  1. Ground five is a bald statement that the Tribunal failed to comply with s.424A of the Act and is made in the absence of particulars, oral or written submissions. A review of the decision record does not reveal any information which would enliven the operation of s.424A, especially the exemption in s.424A(3)(a) and (b):

    (3)  A written invitation under subsection (2) must be given to the person:

    (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

    (b)  if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

  2. The country information referred to in the Tribunal decision clearly falls within the operation of s.424A(3)(a), as the material considered contains no specific reference to the applicant. The balance of the material was provided by the applicant himself in either his original or the review application and is excluded by s.424A(3)(b). In the absence of further elaboration of the alleged breach of this provision of the Act, this claim cannot be sustained and should be dismissed.

Ground six

  1. Again the applicant makes a bald statement that the Tribunal failed to comply with s.91R(3) of the Act without particularisation and oral or written submissions. The Tribunal made the following observations about the applicant’s claimed involvement with the Christian church in Australia:

    70. The applicant claimed he had continued to practice Christianity in Australia.  The applicant could only provide a church pamphlet to the Tribunal.  The Tribunal gave the applicant several occasions to express his commitment to Christianity and elaborate his beliefs; the applicant was not able to do this and after the Tribunal persevered gave the same one word answer “I believe in Jesus”.

    71. The Tribunal had formed the view that if the applicant attended an Anglican church at Parramatta it was simply in order to strengthen his claim for refugee status.  The Tribunal was not satisfied that he had a real commitment to Christianity.  As the Tribunal is not satisfied that the applicant’s conduct was otherwise than for the purpose of strengthening his claim to be a refugee under the refugee convention it must disregard his conduct in Australia as required by s.91R(3).

  1. There is nothing in the Tribunal decision to indicate that it took the alleged conduct in Australia into account in concluding that the applicant did not have a well-founded fear of persecution in China. In circumstances where the Tribunal was not prepared to positively find that the applicant had not attended church in Australia, it took a cautious approach and considered the possibility that the applicant had attended church. In doing so it was then required to consider the application of s.91R(3) of the Act to the conduct in the event that it occurred.

  2. The passage extracted above indicates that the Tribunal fulfilled this requirement: Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40. This ground cannot be sustained and should be dismissed.

Conclusion

  1. I am satisfied that none of the grounds in the original Application can be sustained and that this application should be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  15 December 2009

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