SZNCB v Minister for Immigration
[2009] FMCA 336
•24 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNCB v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 336 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – denial of procedural fairness not proved – Tribunal’s findings open to it on the evidence – bias on the part of the Tribunal not demonstrated. |
| Migration Act 1958, ss.424A, 424AA, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZNCB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3410 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 16 April 2009 |
| Date of Last Submission: | 16 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr P. Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3410 of 2008
| SZNCB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, he claims, his family were members of an underground Catholic church. He claims that in September 2006 his father was arrested while trying to protect the applicant’s aunt who, because of her connections with the Roman Catholic Church, had been accused of overthrowing the government. He claims that his mother has since been trying to petition the authorities in Beijing for their release from imprisonment and has been subject to police persecution as a result.
The applicant claims to fear persecution in China because of his religion, his family’s association with the underground Catholic church in China and his mother’s work as a human rights defender.
After his arrival in Australia on 1 May 2006, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 15 August 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 168 – 174). Relevant factual allegations are summarised below.
Protection visa application
In a statement attached to his protection visa application, the applicant claimed that:
a)his parents were Catholic Christians loyal to the Roman Catholic Church;
b)in September 2006 his father was arrested while trying to protect the applicant’s aunt who, because of her connection with the Roman Catholic Church and Tai Wan Catholic Church, had been accused of overthrowing the government. His father had an argument and a fight with the police and was afterwards accused of illegal assembly and disruption of the social order. He was sentenced to three years in a re-education camp while his aunt was sentenced to five years. At the time of these events the applicant was studying in Australia;
c)his mother has since become a human rights defender. She tried to appeal to the higher authorities in Beijing to free the applicant’s father and aunt but her attempts have been blocked by the police. On 28 March 2008 she was called to the police station for an interview where she was tortured and abused. She was warned that if she continued to go to Beijing she too would go to gaol. Despite this persecution, his mother has continued to fight for human rights and religious freedom;
d)his mother was subsequently interviewed by a reporter from the Free Asia radio station and the news was released and is available on the internet;
e)two of his sisters lost their jobs because they were providing financial support to his mother. The applicant has also been supporting his mother financially and she has urged him to stay in Australia; and
f)he did not seek asylum straightaway “due to the unawareness in Refugee’s cases”. His family is in “hot water” and he needs protection from the Australian government.
The applicant also provided a document purporting to be from the Free Asia radio station website titled “Fujian Christian [name of applicant’s mother] protects human rights and appeals to stop religious persecution”. The article refers to the events of 28 March 2008.
Tribunal hearing
At a hearing before the Tribunal on 17 October 2008, the applicant made the following additional claims:
a)his family were underground Catholics, however, he did not go to church with his father very often and only attended as a child so “he was not clear” about what it meant to be an underground Catholic or what the relationship between the underground church and the Roman Catholic Church was;
b)his parents attended the China Catholic Church. He then said that there was no real church in China and they were connected with Taiwan;
c)he has not been baptised because they did not have a real church for baptism. Also, it was not normal for Catholics to be baptised;
d)he attends church in Australia whenever he has time;
e)there were many articles about his mother on the internet. With respect to the article which he provided to the department, the applicant variously stated that:
i)he found it in September 2007 when his sister told him to look for information relating to his mother on the internet;
ii)he went on the internet and found the article in 2008; and
iii)he went on the internet to look at articles in 2007 and in 2008 he used the articles; and
f)the Tribunal could not access internet information relating to his parents because the events happened a long time ago. However, the applicant had been able to access the information previously.
Section 424A notice
In his reply to the Tribunal’s s.424A notice of 17 October 2008, amongst other things the applicant submitted that there were errors in interpretation during the hearing which he identified. He also claimed that in September 2007 he saw an article on the internet relating to his family’s persecution, however, the article that he provided to the department and to the Tribunal, while “akin” to the articles he had previously found, was about his family’s current situation. He claimed that the Chinese police filtered sensitive topics and posts from the internet every day and this would explain why the Tribunal could not find the relevant articles on the internet.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal did not accept that the applicant was an underground Catholic or that he belonged to a family of underground Catholics in China, noting that:
i)his demonstrated knowledge at the hearing was not consistent with that of a person belonging to an underground Catholic organisation. For instance, he could not initially name any of the seven sacraments and in particular did not understand the significance of baptism; and
ii)he was unable to tell the Tribunal what an underground Catholic was and his answers to the Tribunal’s questions, even accepting that there might have been errors in interpretation, indicated a lack of understanding about the relationship between the underground church and the Roman Catholic Church,
b)the applicant’s limited knowledge of the Catholic Church led the Tribunal to conclude that he lacked credibility;
c)in light of these concerns, the Tribunal was not prepared to give the applicant the benefit of the doubt and did not accept that he had attended mass in Australia. In this regard, the Tribunal noted that the applicant was unable to demonstrate knowledge of the Nicene Creed despite sufficient opportunities to do so;
d)the Tribunal did not find the internet article which the applicant purportedly found in September 2007 to be credible, given that it referred to events in March 2008. When this was pointed out by the Tribunal at the hearing, the applicant changed his evidence and this led the Tribunal to conclude that he was not being truthful; and
e)the Tribunal searched the Radio Free Asia and China Protecting Human Rights Alliance websites using the Chinese language names of the applicant’s parents and could find no results. The Tribunal also searched the website address on the document the applicant provided to the department but, as an unregistered user, was unable to access it. However, based on the UID number listed on the document, the Tribunal was of the view that it had been created by a registered user sometime between 1 May 2008 and 4 May 2008 and did not reflect a journalist’s report. In light of this, and given the applicant’s overall lack of credibility, the Tribunal was not satisfied that the article was not posted by the applicant other than for the purposes of his refugee claim.
Having made these findings, the Tribunal did not accept that any of the events which purportedly occurred in China had in fact happened. Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would practise as an underground Catholic, be perceived as an underground Catholic or be associated with an underground Catholic family should he return to China.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)Jurisdictional errors have been made.
(2) Fairness has been denied.
Jurisdictional error
The allegation of jurisdictional error made in the first ground of the application is not particularised and thus has no substantive content. Nevertheless, consideration should be given to whether jurisdictional error can be discerned in the Tribunal’s decision notwithstanding the fact that the applicant has not directed the Court’s attention to any particular aspect of the review, whether in terms of the procedure adopted by the Tribunal or the decision which it reached.
Procedurally, the Tribunal is relevantly governed by the provisions found in div.4 of Pt.7 of the Act. The principal of those provisions are ss.424A and 425. As to the former, the Tribunal did send the applicant a s.424A notice dated 17 October 2008 (CB 143) to which it made reference at para.30 of its decision. Moreover, at its hearing, by means of an oral notification pursuant to s.424AA, the Tribunal put to the applicant certain matters potentially arising under s.424A. I am satisfied that by giving the applicant these notifications, the Tribunal discharged such obligations as it had under s.424A to bring certain information to the attention of the applicant so that he might have an opportunity to comment on it. Indeed, the Tribunal put to the applicant more material than s.424A strictly obliged it to put to him. In the circumstances, I do not find that there has been a breach of the Tribunal’s obligations under that section.
As to s.425, the applicant was invited to attend the Tribunal hearing and he did so. He gave evidence and advanced arguments in support of his allegation that he had a well-founded fear of persecution in China for a Convention reason. As to whether the applicant had been sufficiently alerted to the issues arising in relation to the decision under review, the Tribunal’s decision record discloses that at various points through the course of its hearing the Tribunal put to the applicant its concerns regarding the veracity of individual elements of his claim together with the veracity of his claim generally. In particular, it put to the applicant its general concern that the shortcomings it discerned in his account and allegations might lead it to the conclusion that he was not credible. In such circumstances, and given that the Tribunal’s finding was, in essence, based on a rejection of the applicant’s credibility and the truthfulness of his allegations, it cannot be concluded that the Tribunal breached its obligations under s.425 of the Act.
As to the remaining provisions of div.4 of Pt.7 of the Act, no breach of such obligations as the Tribunal may have had under those sections is apparent.
Turning to the Tribunal’s decision, as already noted it was based on an adverse finding as to the applicant’s credibility. Such a finding of fact is a matter especially reserved for the Tribunal to decide and is not a finding which can be disturbed by this Court. In this context, it should be observed that the Tribunal clearly explained the reasons for that conclusion by reference to the evidence before it.
Subject to consideration of the matters raised by the second ground set out in the application, I do not conclude that the Tribunal’s decision is affected by jurisdictional error.
Fairness
The applicant’s allegation that fairness was denied to him appears to be an allegation of denial of procedural fairness and also an allegation of bias.
The applicant made two factual allegations which might support findings of bias and that procedural fairness had been denied him. First, he submitted that the Tribunal had made up its mind before he had an opportunity to submit further information which had been requested of him. Secondly, he submitted that the interpreter services at the Tribunal hearing had been deficient and that although he had complained to the Tribunal about this the Tribunal, in essence, disregarded his complaint.
As to procedural fairness generally, these issues have been considered above at paragraphs [15]-[17] and for the reasons expressed there this aspect of the allegation is not made out.
As to the allegation that the Tribunal made its decision before receiving from the applicant further information which it had sought, the applicant said from the bar table that he had sent a letter to the Tribunal after its hearing, and one letter only, but that the Tribunal had made up its mind and reached a decision before he had had an opportunity to actually send that letter. This proposition is contradicted by the evidence. The only letter sent by the applicant to the Tribunal after its hearing and which is in evidence is the one dated 28 October 2008 which he sent in response to the Tribunal’s s.424A notice dated 17 October 2008. The applicant’s letter is reproduced at CB 145-147. The copy of that document reproduced in the Court Book bears a Tribunal received stamp dated 3 November 2008. Significantly, the Tribunal did not sign its decision until 18 November 2008. Moreover, para.31 of the Tribunal’s decision quotes from the applicant’s letter of 28 October 2008.
Given these facts, it cannot be concluded that the Tribunal had reached its decision without giving the applicant an opportunity to put matters to it or that it reached its decision without considering the information which the Court Book discloses the applicant provided subsequent to the hearing.
As to the applicant’s complaint to the Tribunal about the quality of the interpreter services, this is referred to at para.31 of the Tribunal’s decision (CB 173). Contrary to the applicant’s allegation that the Tribunal did not consider this complaint, its consideration of that complaint can be found at para.36 of its decision. There it concluded that, even if there had been translation difficulties in respect of certain of the applicant’s answers to the Tribunal’s questions, that could not alter the fact that the applicant’s general knowledge concerning the faith he claimed to espouse was tellingly inadequate.
On the question of bias more generally, the only evidence before the Court is the material contained in the Court Book including, most relevantly, the Tribunal’s decision record. Nothing in those documents supports a conclusion that the Tribunal approached the review with a mind so committed to a conclusion already formed so as to be incapable of alteration whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, or a conclusion that it conducted itself in such a way that a fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue and the conduct which might be said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal did not bring an impartial or an unprejudiced mind to the resolution of the matter it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
For these reasons, the second ground set out in the application does not disclose jurisdictional error on the part of the Tribunal.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 April 2009
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