SZNBW v Minister for Immigration
[2009] FMCA 425
•6 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNBW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 425 |
| 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; 424AA; 424A(1); 424A(3)(ba); 474; pt.8 div.2; Pt.7 div.4 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 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 Multicultural and Indigenous Affairs (2007) 235 ALR 609 SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 |
| Applicant: | SZNBW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3360 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 6 May 2009 |
| Date of last submission: | 6 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2009 |
REPRESENTATION
| Applicant appeared in person assisted by a Fuqing interpreter |
| Counsel for the Respondent: | Mr J. Potts |
| Solicitors for the Respondent: | Ms K. Dunn, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3360 of 2008
| SZNBW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
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 21 November 2008 and handed down that same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Catholic faith (“the Applicant”).
The Applicant arrived in Australia on 18 April 2008 having departed legally from Fu Zhou Airport on a passport issued in his own name and a student guardian (TU-580) visa issued on1 April 2008.
On 2 April 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 24 July 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 20 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 21 November 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 18 December 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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.
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”).
Australia has protection obligations to a refugee on Australian territory.
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.”
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
In a statement provided in support of his protection visa application the Applicant stated that he feared persecution by Chinese authorities by reason of his attendance at organised underground Catholic gatherings. The Applicant claimed he was detained by police on 14 January 2007 for six months and beaten following a gathering at his place of work. He claimed he was fired from his job and found it difficult to find work after his detention.
The Delegate’s decision
On 25 June 2008, the Applicant attended an interview with the Delegate.
On 24 July 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
On 20 August 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of his review application.
On 29 August 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 23 October 2008 to give oral evidence and present arguments.
On 23 October 2008, the Applicant gave evidence at the hearing before the Tribunal at which the Applicant expanded upon his written claims.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“The Tribunal concluded that it was not satisfied that the applicant was a member of an underground Catholic church, or any underground church in China. That was primarily because of his very limited knowledge about the Catholic church which he exhibited during the DIAC interview. On the basis of his evidence the Tribunal was not satisfied that he was ever perceived in China to be a member of an underground church, and was not satisfied that he was ever dismissed from his job, or detained by the authorities because of such a perception.[1] The Tribunal was not satisfied that the applicant had engaged in the conduct in Australia otherwise the purpose of strengthening his claim to be a refugee.[2]
The Tribunal found that the applicant did not have a well-founded fear of Convention related persecution in China.[3]”
[1] CB at 125-126 at [54]-[55].
[2] CB at 126-127 at [61].
[3] CB at 127 at [63].
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter.
On 23 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. The Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit. The Applicant was also directed to file and serve written submissions in support of his application. No amended application, evidence or submissions were filed by or on behalf of the Applicant.
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.
At the commencement of the hearing before this Court, the Applicant confirmed that he relied on the grounds contained in the application filed on 18 December 2008.
The grounds of the application are expressed as follows:
“1. RRT got information about the situation in Fujian province, which was that there was a high degree of religious tolerance, it is not true. Chinese government still persecuted underground church leader.
2. I am not satisfied with RRT decision. It is not fair. They use more negative cases to refuse my application. I believe in God. All I said is true. RRT failed to assess my risk to return to China.”
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 confirmed to the Court that he had no evidence to provide to the Court in support of his application. The Applicant declined to make any submission in support of either of the grounds of the application or in support of the application generally.
Ground 1
Ground 1 is unsupported by particulars, evidence or submissions. It makes a bare assertion that is no more than a disagreement with the use of country information by the Tribunal and its findings made accordingly.
The country information to which the Tribunal has regard and the weight it gives such material is a matter entirely for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]-[11]).
A fair reading of the Tribunal’s decision record identifies in detail the country information to which it had regard. Whilst the Tribunal referred to reports of religious tolerance in Fujian, it also noted that in January 2007 there were “reports of house churches being destroyed in the provinces of Jilian and Fujian”.
In any event, a fair reading of the Tribunal’s decision record makes clear that the reason that the Tribunal affirmed the decision under review was because of its comprehensive rejection of the Applicant’s claims and its adverse credibility findings. At the heart of the Tribunal’s adverse credibility findings were the Applicant’s lack of knowledge about Catholicism and inconsistent evidence given both internally to the Tribunal and to the Department. 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). Those findings were open to the Tribunal on the evidence and materials before it and for the reasons it gave.
A fair reading of the Tribunal’s decision record does not suggest that the Tribunal’s adverse credibility findings were in any way affected by country information to which the Tribunal had regard.
Otherwise, Ground 1 seeks 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).
Accordingly, ground 1 is rejected.
Ground 2
Ground 2 does not disclose any error capable of review by this Court. I accept the written submissions of counsel for the First Respondent, Mr Potts, that Ground 2 “expresses nothing but the applicant’s disagreement with the Tribunal’s findings of fact and the merits of its decision”. As stated above, this Court has no jurisdiction to consider the merits of the Applicant’s claims.
Accordingly, Ground 2 is rejected.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims. The Tribunal explored the Applicant’s claims with him at a hearing. The Tribunal noted matters of concern that it put to the Applicant about his evidence and noted his responses.
The Tribunal stated that it gave the Applicant an opportunity to comment on information that may have been a reason for affirming the decision under review in accordance with s.424AA of the Act. A fair reading of the Tribunal’s decision record states that the Tribunal gave the Applicant the option to respond orally or in writing and explained to the Applicant why that information may be relevant.
In particular, the Tribunal noted that it told the Applicant that during his interview with the Department, the Applicant “had seemed to know little about Catholicism”. The Tribunal told the Applicant that it may infer from that lack of knowledge that the Applicant had not been attending an underground church in China and had only begun attending church in Australia in order to provide a basis for a protection visa application. The Tribunal noted that the Applicant chose to respond orally and noted the Applicant’s response in some detail.
That information was capable of being characterised as information that may undermine the Applicant’s claims. It was information given by the Applicant to the Department orally and was therefore not excluded by s.424A(3)(ba) of the Act (SZBYR v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 235 ALR 609 at [17]; SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 at [15] and [16] per Perram J; SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J; SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [17]-[18] per Jacobson J).
Counsel for the First Respondent conceded that such information enlivened the obligations of s.424A(1) of the Act, unless there was compliance by the Tribunal with s.424AA of the Act in giving that information to the Applicant.
However, there is no evidence before this Court to suggest that the Tribunal did not comply with s.424AA of the Act in giving the Applicant this information. Further, I accept the submission of counsel for the First Respondent that the Court should infer, on a fair reading of the Tribunal’s decision record, that the Tribunal gave that information to the Applicant in accordance with s.424AA of the Act.
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 23 February 2009, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure than any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on tapes at 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.
In the circumstances, there is no evidence before this Court that the Tribunal failed to comply with s.424AA. Neither does a fair reading of the Tribunal’s decision record support such an inference that the Tribunal failed to comply with s.424AA of the Act.
Accordingly, a fair reading of the Tribunal’s decision record makes clear that the Tribunal complied with the statutory requirements of Part 7 Division 4 of the Act in the making of its decision, including conduct of its review.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant; 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 makes clear that the Tribunal reached conclusions based on the findings made by it to which it applied the correct law in reaching those conclusions.
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.
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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 6 May 2009
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