SZNCW v Minister for Immigration
[2009] FMCA 335
•24 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNCW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 335 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proved – breach of s.424A of the Migration Act 1958 not proved – Court cannot review Tribunal’s findings of fact or conclusion on the merits of the application under review. |
| Migration Act 1958, ss.424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZNCW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 15 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 April 2009 |
| Date of Last Submission: | 15 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 15 of 2009
| SZNCW |
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, he was an underground Christian. He alleges that while in China he established an illegal Bible study group in Henan which brought him to the adverse attention of the Chinese authorities.
The applicant claims to fear persecution in China because of his religion and political opinion.
After his most recent arrival in Australia on 18 March 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 23 June 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 cannot rehear the applicant’s application for a visa. Its 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 – 22 of the Tribunal’s decision (Court Book (“CB”) pages 104 – 122). Relevant factual allegations are set out below.
Protection visa application
In a statutory declaration attached to his protection visa application, the applicant claimed that:
a)he arrived in Australia most recently on a Chinese passport issued under a false name;
b)he first arrived in Australia in 2004 as the holder of a student visa. When he returned to China in July 2007 for his grandfather’s funeral, his student visa was cancelled and he could not return to Australia;
c)people in his hometown (in Fujian province) thought that he had been sent back to China by the Australian Government and this placed him under a huge amount of pressure. He therefore decided to go to Henan Province to take up a job in the construction industry;
d)one of the labourers in his team, DZ, came from a particular village in Henan where many of the local villagers suffered from AIDS. Two of DZ’s brothers had contracted the virus and DZ tried every means to make money in order to pay for their medical treatment;
e)as “a devout Christian” the applicant felt much sympathy for DZ’s difficult situation. He wanted to help DZ and his family as well as the other AIDS victims and so returned to his home town in November 2007 to seek help from SL, a religious leader from an unofficial Christian church;
f)on 3 December 2007 SL and the applicant, along with five other church volunteers, arrived in Henan Province. Guided by DZ, they visited at least 10 villages between December 2007 and February 2008, spreading the gospel and distributing donations collected from their church in Fujian. They also distributed Bibles and religious promotional materials to the families;
g)in early February 2008 SL and the applicant established a Bible study group in DZ’s home village. SL was in charge of spreading the gospel to adults and the applicant was responsible for young people;
h)on 24 February 2008 police surrounded DZ’s village and arrested SL, the five church volunteers and about 10 other people. The applicant managed to escape with some help from DZ and travelled to Guangzhou where he stayed for one month with JW, DZ’s good friend. During this period the police from Henan went to the applicant’s home in Fujian on three occasions to arrest him. They also threatened his friends and relatives with severe punishment if they offered him assistance;
i)DZ, through JW, eventually arranged for him to leave the country on a passport that was not in his real name; and
j)he cannot return to China because the police are looking for him everywhere. He has been accused of spreading illegal religious ideologies, distributing illegal religious propaganda materials and is regarded as a founding and key member of an illegal religious organisation (i.e. the Bible study group).
Tribunal hearing
The applicant made the following additional claims at a hearing before the Tribunal:
a)he was not sure who financed his most recent trip to Australia, perhaps JW. She was a Christian and knew about the applicant’s story;
b)JW asked him to follow one Brother Feng who would then take him somewhere to avoid persecution in China;
c)in relation to his travel movements, he variously stated that:
i)he flew from Guangzhou to Hong Kong on 14 March 2008. At the time, Brother Feng told him to leave China from Hong Kong but he could not do so. He therefore returned to Guangzhou that same day;
ii)he held a valid visa for Malaysia in his own name and planned to fly there from Hong Kong, however, Brother Feng told him that he could not do that and so he returned to Guangzhou. He then went back to Hong Kong because Brother Feng said that this time he could exit from Hong Kong;
iii)Brother Feng made the arrangements for his Malaysian visa;
iv)he had his passport stamped when travelling to and from Hong Kong and Guangzhou because Brother Feng asked him to do so;
v)he had no trouble arriving in or departing from Hong Kong; and
vi)his trip from China via Hong Kong was arranged by JW and DZ. He had to follow their instructions in order to avoid detection by the authorities in China;
d)his name is on a Chinese wanted list and he will be arrested if he returns to China;
e)he was baptised in China but does not have a baptismal certificate because they do not have those in China. He then stated that he was not 18 years old and one only gets a baptismal certificate if one is older than 18 years;
f)DZ’s younger brother suffered from AIDS. He did not have any other siblings;
g)he did not bring the church to Henan but brought priests there to evangelise. He said that there are no Christian churches in Henan;
h)there were six people, including himself, who came to Henan from Fujian;
i)he wanted to set up a religious group in DZ’s village because no-one in that village believed in Christianity and there were no Christian groups in DZ’s village;
j)if he returned to China he would continue to attend church services;
k)he attends a church in Padstow in Australia and has done so since arriving in Australia in 2004. The church is a “Shouter” church.
l)in 2005 while in Australia he demonstrated against the Chinese government;
m)the department has been biased against him “from day one” because it thinks that he came to Australia to be with his family. In fact, he came here because he was wanted and needed to go abroad and it was a coincidence that he came to Australia; and
n)the interpreter at the departmental interview was not very good and the interpreter at the Tribunal hearing was “all right but not excellent”.
Post hearing
On 4 September 2008 the Tribunal provided the applicant with a copy of the recording of the Tribunal’s hearing.
In a statutory declaration declared on 16 October 2008, in response to the Tribunal’s s.424A notice dated 3 October 2008, the applicant stated, amongst other things, that it was unfair that he had not been provided with a recording or transcript of the departmental interview and he was sure that his evidence had not been interpreted properly and accurately. He also complained about the interpreting at the Tribunal hearing.
On 29 October 2008 the Tribunal received a letter from the applicant’s representative attaching a letter from the Rev Mr Ku of the Chinese Congregational Church stating that the applicant was worshipping at that church.
By letter dated 11 November 2008 the Tribunal informed the applicant that although there was no record on the department’s file or the Tribunal’s file of him ever having requested in writing a copy of the recording of the department’s interview, the Tribunal had nevertheless decided to provide him with a copy of that recording. The Tribunal informed the applicant that he could provide further comments by 4 December 2008.
The applicant did not provide any further comments.
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 was not satisfied that the interpreting at the departmental interview was not adequate or accurate, noting that:
i)the delegate’s decision record contained a number of references to inconsistent statements made by the applicant, however, at the time of lodging his application for review the applicant made no comment on this nor did he request a copy of the CD recording of the interview. It was only after the Tribunal raised these inconsistencies with him that the applicant claimed there were problems with the interpreter;
ii)the applicant’s migration agent was informed of the departmental interview and could have requested that he or she be allowed to attend;
iii)the applicant had been in Australia as a student for almost three years and his level of English was better than many overseas persons whose first language was not English; and
iv)the Tribunal provided the applicant with a copy of the recording of the departmental interview and gave him time to particularize any complaints he might have had regarding the interpretation that occurred. However, the applicant did not provide any further comments;
b)in addition, the Tribunal was not satisfied that the interpreting at the Tribunal hearing was not adequate or accurate given that the applicant had received a copy of the CD recording of the hearing, the duration of which was over three and half hours, and the only specific complaint he made about the interpretation related to the name of the Church which he claimed he had been attending while in Australia. According to the applicant’s evidence, he had been attending this church since 2004 and the Tribunal found it surprising that he could not say the name of the church in English or failed to notice that it had been interpreted incorrectly;
c)the Tribunal was not satisfied that the applicant’s use of a false passport necessarily meant that it should accept at face value his claim to have done so because it was the only way he could leave China, noting that:
i)there could be other reasons, besides the fear of being persecuted, which could motivate an applicant to obtain a fraudulent travel document; and
ii)given the cancellation of the applicant’s student visa, it was unlikely that he would have been able to obtain a visa in his own name to re-enter Australia. Even so, the Tribunal reached no conclusion that it was for such a reason that the applicant obtained and used a false passport;
d)the Tribunal found that at the time of lodging his application for a protection visa the applicant held a valid passport in his own name and had therefore been untruthful when he stated in his protection visa application that he had had difficulties obtaining a travel document. The Tribunal did not find credible the applicant’s explanation that he obtained a passport in another name in order to escape China;
e)the Tribunal did not accept that the applicant was a member of an underground Christian church in China or that he was persecuted and/or feared persecution in China because of his religion or because of his religious activities;
f)the Tribunal did not accept that the applicant was a witness of truth given the following inconsistencies in his evidence:
i)he stated at the hearing that there were five Christian volunteers from Fujian, including SL, who went with him to Henan, but in his first statutory declaration he stated that there were five volunteers plus SL;
ii)in his first statutory declaration he stated that sixteen people were arrested on 24 February 2008 while at the departmental interview he said that five people were arrested;
iii)he stated in his protection visa application that he departed China on 14 March 2008 but at the hearing said that on 14 March 2008 he flew from Hong Kong to Guangzhou. The false passport used by the applicant on which he claimed to have travelled to Australia shows that he departed from Hong Kong on 17 March 2008;
iv)he stated that he had no trouble arriving in or departing from Hong Kong and even went through customs and had his passport stamped, yet he did not take the opportunity to depart China from Hong Kong on 14 March 2008 when he had a valid visa and passport in his own name. The Tribunal found that the applicant was not in fear of being persecuted and did not accept that he was simply following Brother Feng’s instructions;
v)at the departmental interview he stated that there were no churches in Henan, having brought it with him from Fujian, but at the hearing he said that he did not bring the church but brought priests to evangelise. The Tribunal also noted that according to country information Henan province has the largest number of Christian churches in China;
vi)the applicant stated in his second statutory declaration that there were “no unregistered Christian groups in [X] in Henan province” and that he and SL had established a Bible study group there with the help of DZ. The Tribunal did not accept this evidence as country information indicated that Henan has the largest number of Christians among all the provinces in China, most of whom attend house churches, and the unregistered church movement is very strong; and
vii)in his first statutory declaration he stated that DZ had two brothers who suffered from AIDS but at the hearing he said that DZ had one brother who suffered from AIDS;
g)the Tribunal found it implausible that DZ would consider assisting the applicant financially to depart China given the applicant’s evidence that DZ was under tremendous pressure to make money so that he could pay for his brother’s or brothers’ medical treatment;
h)in light of its adverse credibility findings against the applicant, the Tribunal did not accept that these inconsistencies could be attributed to his claimed nervousness at the hearing. The Tribunal also noted that he had assistance from a registered migration agent and the conversations with his representative had been conducted in Mandarin. In addition, the applicant had given evidence that the information contained in his application for a protection visa and accompanying statutory declaration had been correct and had been read back to him before he signed the documents;
i)the Tribunal was satisfied that the applicant was prepared to fabricate his material claims in order to invoke refugee protection obligations in Australia. It found him not to be a witness of truth. Based on its adverse credibility findings, the Tribunal concluded that there were reasonable grounds to reject all the applicant’s material claims; and
j)having made these findings, the Tribunal was not satisfied that the applicant engaged in the conduct of worshipping at a Christian church or other activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregarded the applicant’s conduct while in Australia.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal’s finding has included a reasonable apprehension of bias.
(2)The Tribunal failed to comply with its obligations under s.424A(1) of the Act.
(3)The Tribunal failed to consider my claims properly and fairly.
Reasonable apprehension of bias
Relevantly, this allegation is particularised as follows:
But, the Tribunal failed to take any genuine attempt to consider my claims properly and fairly; instead, it made a finding, which has included a reasonable apprehension of bias, as follows:
In light of the applicant’s Student visa as cancelled on 28 July 2007, the Tribunal finds it unlikely that the applicant would have been able to obtain a visa in his own name to re-enter Australia.
The Tribunal then inferred, based on nothing but its assumption, that I had to use a passport in other’s name to come to Australia during current trip was because that “… it is unlikely that the applicant would have been able to obtain a visa in his own name to re-enter Australia …”
This allegation is misconceived. The relevant passage from the Tribunal’s decision states:
In light of the evidence that the applicant’s Student visa was cancelled on 28 July 2007 the Tribunal finds it is unlikely that the applicant would have been able to obtain a visa in his own name to re-enter Australia. The Tribunal reaches no conclusion that it was for such a reason that the applicant obtained and used a fraudulent passport. However, the Tribunal is also not satisfied on the evidence that the fact that the applicant used a fraudulent passport means that it should accept at face value his claim that he did so because this was the only way that he could leave China. (para.110)
A consideration of this passage demonstrates that, in fact, the matters relied upon by the applicant formed no part of the basis for the Tribunal’s decision except to the extent that it observed that the mere fact that the applicant had used a fraudulent passport did not necessarily support his claim.
More generally, the Tribunal’s decision record does not disclose material from which it could be concluded that a fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
In addition to the allegation of apprehended bias it might be possible that, in the course of his oral submissions at the hearing, the applicant suggested that the Tribunal demonstrated actual bias. However, given the detailed consideration of the applicant’s claims which the Tribunal’s decision record discloses, it cannot be concluded that it approached the exercise of its jurisdiction with a state of mind so committed to a conclusion already formed 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.
In these circumstances I do not conclude that the allegation of apprehended bias, or an allegation of actual bias if made, has been made out against the Tribunal.
Failure to comply with s.424A
The applicant alleges that in its letter to him of 11 November 2008, which invited the applicant to make any comments he might wish to make “relating to the interpretation at the departmental interview or the Tribunal hearing”, the Tribunal failed to ensure that he understood that if he did not respond as invited by that letter, and he did not respond to it, the Tribunal would not consider certain comments which he had made in reply to the Tribunal’s s.424A notice of 3 October 2008.
It is first to be noted that, contrary to the applicant’s allegation, the Tribunal did consider material contained in his reply to its s.424A notice. The relevant portion of his reply is quoted in the application commencing these proceedings in the following terms:
I have never said at the Departmental interview with the Department of Immigration and Citizenship in June 2008 that there were no churches in Henan and I brought it from Fujian. I am sure that it must be significant mistake made by the interpreter even though I have, unfairly, not been provided a recording CD or accurate transcript in relation to the Departmental interview. What I have said was that there were no unregistered Christian groups in Xiangcheng in Henan Province; and that [SL] and I established a Bible study group with helps of [DZ] there. Furthermore, I do indeed doubt that the interpreter had interpreted or used the words like “bring”, properly and accurately, at the Departmental interview; or even the interpreter at the Tribunal’s hearing. However, it was true that I did bring priests to evangelize in Xiangcheng in Henan Province.
…
… I am sure that my evidence given at the Departmental interview has not been interpreted by the interpreter, properly and accurately. I have to hereby emphasize that [SL] and five other volunteers from the Family Christian Church in Fujian as well as about 10 local people were arrested by the police on 24 February 2008.
These passages were summarised by the Tribunal at para.90 of its decision record. Further, in that part of its decision record where it sets out its reasons, the Tribunal discussed this aspect of the applicant’s evidence at paras.112-116.
But in any event, whether or not the Tribunal relies on particular information at its disposal is a matter for it as part of the reasoning process associated with making its decision. That is to say, the matter complained of by the applicant relates to the Tribunal’s analysis of the evidence and the inconsistencies in that evidence. These are not matters which meet the definition of “information” for the purposes of s.424A: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190, and thus the Tribunal was not required to make its letter of 11 November 2008 comply with the requirements of s.424A.
Finally as to the applicant’s complaints concerning the quality of interpreter services at the departmental interview, it should be noted that although at the hearing in this Court the applicant submitted that the CDs containing the recording of the departmental interview had not actually been received by his migration agent, notwithstanding that they were stated to have been enclosed with the Tribunal’s letter of 11 November 2008, in the particulars to the second ground to the application the applicant says this:
Having carefully listened to the recording of the Departmental interview, I still insisted on my comments, which I have previously made and provided to the Tribunal.
In such circumstances, and also given the annotations appearing on the copy of the 11 November 2008 letter reproduced at CB 95, I find that the CDs containing the sound recording of the departmental interview were supplied to the applicant and received by him.
Failure to consider claims properly and fairly
The applicant particularises the allegation that the Tribunal failed to consider his claims properly and fairly by reference to his response to the Tribunal’s s.424A notice, which included a complaint about the quality of interpreter services at the Tribunal hearing.
Dealing first with the allegation concerning the interpreter services available at the Tribunal hearing, the applicant has led no evidence which could lead the Court to the conclusion that there was any deficiency in those services. No transcript of the Tribunal hearing has been put before the Court nor has any other evidence been led which demonstrates faults in the translations provided at the Tribunal hearing. This is notwithstanding that, according to the Tribunal’s letter of 17 November 2008 addressed to the applicant’s migration agent (CB 97), a copy of the recording of the Tribunal hearing was sent to the applicant on 4 September 2008. In any event, at para.81 of the Tribunal’s decision the applicant is recorded as having stated, in relation to the interpreter assisting him at that hearing, that the interpreter at the hearing “was all right [sic] but not excellent”. It might also be noted that the “RRT Hearing Record” reproduced at CB 74-75 records that the interpreter who assisted at the Tribunal hearing was accredited to NAATI level 3 standard. In all the circumstances, I am not satisfied that the applicant has demonstrated that there was any material inadequacy in the interpreter services provided to him at the Tribunal hearing.
As to the other matters raised by the applicant’s response to the Tribunal’s s.424A notice, the applicant invites the Court to review the Tribunal’s decision as to the merits of his application. The findings which the Tribunal made were open to it on the evidence and, in those circumstances, the Court is not empowered to review them.
In any event, it is apparent from the Tribunal’s decision that it paid considerable regard to the evidence given by the applicant at various stages of his protection visa application process, including the material contained in his response to the s.424A notice. It cannot be concluded that the Tribunal did not undertake an adequate and impartial review.
Conclusion
For the above reasons, jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 April 2009
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