SZNDZ v Minister for Immigration - [2009] FMCA 242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNDZ v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 242

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa to the applicant – applicant is a citizen of the People's Republic of China claiming fear of persecution for reasons of his religious beliefs – no reviewable error.

Migration Act 1958 (Cth), ss.91R, 422, 424A, 425,474

Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 437, [2000] HCA 1

Applicant:

SZNDZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 103 of 2009

Judgment of:

Scarlett FM

Hearing date:

17 March 2009

Date of Last Submission:

17 March 2009

Delivered at:

Sydney

Delivered on:

17 March 2009

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:

Australian Government Solicitors

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $3900.00 and I allow four months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 103 of 2009

SZNDZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application to review a decision of the Refugee Review Tribunal. The Tribunal in a decision handed down on 16 December 2008 affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. The applicant now seeks judicial review of that decision and in particular he asks the Court to issue orders in the nature of certiorari and mandamus. He asks the Court to set aside the Tribunal decision and to require the Tribunal to review his case again. In his application he claims in both of the grounds that he sets out that he was not treated fairly by the Refugee Review Tribunal.
The applicant has been informed that in order to make orders of the type that he seeks the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error.

Background

The applicant is a citizen of the People's Republic of China. He arrived in Australia on 11 July 2008 and applied for a protection visa on 14 July 2008. He applied for protection on the basis of the Refugees Convention reason of religious belief. In a statement attached to his application for a protection visa he claimed to have been persecuted in China for his belief in Christianity.
He claimed to have been brought up in a Christian family but on an occasion on 1 May 2007 the police came to the house and he describes what happened next in his own words,
We were singing hymns, reading Bible, praying and enjoying the joys and happiness God brought to us; suddenly a group of police broke in. Without any explanation they forced us into the police car and took all of us to the local station (Jiangjing Town Police Station). Everyone had to give oral evidence. Because my father was the organiser and fined and detained before he was sentenced three months in a labour camp for re-education through labour. My family members and I were released at 4 pm the following day[1].
[1] See Court Book at page 43
The applicant described further arrests on 20 April 2008 and he described that he was beaten and tortured. His father was given a detention order for six months and that the applicant said,
I was released 15 days after detention and sacked by my working unit[2].
[2] See Court Book at page 44
The delegate of the Minister invited the applicant to attend an interview on Friday 5 September 2008. The applicant attended the interview and discussed his claims with the departmental officer. The delegate of the Minister refused the application for a visa on 3 October 2008. In the delegate's reasons he set out the applicant's claim to have suffered persecution by being arrested and detained by the police whilst practicing his religion. He also claimed to have been directed to pay a fine as he had fathered a second child in breach of the One Child Policy in force in China.
The delegate considered that being fined for a breach of the One Child Policy is not unique to the applicant and applies to the general population and accordingly found that that was not persecution. The delegate was not satisfied about the applicant's claims to have been detained and was not satisfied that the applicant was attending Church in Australia.

Application to the Refugee Review Tribunal

After his application for a visa was refused the applicant applied on 27 October 2008 to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to the applicant at the post office box number that he gave in his application for review on 10 November 2008. The letter was headed, "Invitation to comment on or respond to information in writing," and was clearly intended to comply with the requirement of s.424A of the Migration Act.
In that letter the Tribunal invited the applicant to comment on or respond to information that the Tribunal considers would, subject to any comments or response that the applicant made, be the reason or a part of the reason for affirming the decision that is under review. The Tribunal then set out a summary of information that the applicant gave in his interview with the delegate on 5 September 2008. The letter invited the applicant to provide his written comments or response by 3 December 2008. However the applicant did not provide any written comment or response.
The Tribunal also invited the applicant to attend a hearing on 8 December 2008. The applicant attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language. Apart from the applicant; two other people gave evidence to the Tribunal by telephone. Both of those people gave evidence about the applicant's Church attendance in Australia.
The Tribunal signed its decision on 15 December 2008 and handed the decision down on 16 December 2008. A copy of the Tribunal decision record can be found in the Court Book at pages 110 through to 140. In the decision record the Tribunal set out the applicant's claims in evidence based on his application for a protection visa, the applicant's statements to the Minister's delegate at the interview on 5 September 2008, the s.424A letter to which the applicant did not reply and the applicant's evidence to the hearing. That evidence was set out in some detail and can be found in the Court Book at pages 117 through to 129.
The Tribunal considered independent country information under the heading, "Information from other sources." That material is set out in the Court Book at pages 129 through to 134. The independent country information related to family planning in China and the implementation of the One Child Policy. The information also concerned Christianity in Fujian Province including the treatment of underground Christians in that province. The information also included advice from the Immigration and Refugee Board of Canada about security and exit control procedures for people departing from China.
In its findings and reasons the Tribunal accepted that the applicant was a national of China based on the fact that he had travelled on a Chinese passport and claimed to be a national of that country. However, the Tribunal made a significant finding about the applicant's credibility. The Tribunal said at paragraph 82,
The Tribunal found the applicant not to be a witness of credibility. The Tribunal found that the applicant had been evasive in some of his evidence and there were a number of inconsistencies in his evidence as discussed below[3].
[3] See Court Book at page 135
The Tribunal then went on to discuss the applicant's claims about a breach of the One Child Policy and about persecution arising from his adherence to Christianity. However, the Tribunal found that the applicant had been untruthful in his evidence to the Tribunal and it did not accept his claims. The Tribunal did consider the applicant's conduct in Australia. The Tribunal had this to say,
The Tribunal accepts having regard to the applicant's own oral evidence and the evidence of Mr Poh that the applicant had been attending a Church in Australia, however the Tribunal found the applicant not to be a truthful witness and the Tribunal has rejected the applicant's claim that he had regularly attended a Church in China and that he had regularly participated in religious activities. The Tribunal is not satisfied that the applicant's conduct in Australia including his acquisition of knowledge about Christianity was engaged in otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal disregards the applicant's conduct in Australia in accordance with ss.91R.3 of the Act[4].
[4] See Court Book at page 139
The Tribunal did accept that the applicant had displayed some knowledge about Christianity and did accept that he may have had some involvement with the Church in China. The Tribunal accepted that the applicant may wish to continue to attend Church and engage in religious practices in China but finds that if he did do so he would be able to do so in the Church in his home town and he would be able to continue his religious activities without a fear of persecution.
The Tribunal found that the Church which the applicant attended in the past operated with the knowledge and approval of the authorities and accordingly found that the applicant would not come to the adverse attention of the authorities or be persecuted because of his involvement. The Tribunal noted that the applicant spoke about the general lack of human rights in China, the denial of religious and other freedoms and democratic rights but did not accept that those statements on their own gave rise to real chance of persecution for a Convention reason.
The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee's Convention and affirmed the decision not to grant him a protection (Class XA) visa. The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 15 January 2009. His affidavit just briefly sets out the factual matters of his claim and does not contain any allegation of jurisdictional error.
His application sets out two grounds,
(1)I was not considered fairly by RRT. They low assess my risk to go back to China. I will be put in gaol if I attend house Church gathering.
(2)I am not good at speaking. I just told the goodness of God to others. I did not preach. RRT member thought I preached and I should have known more knowledge about Bible. It is not fair.
The applicant has not filed any amended application or any written outline of submissions. He attended Court and told the Court that when the Tribunal assessed the risk to him if he went back to China the Tribunal said that the risk of persecution was too low. He sought to tender two documents but they were objected to by Ms Kelso who appeared for the Minister. The basis of the objection which was upheld in each case was that neither document had been in evidence before the Tribunal and indeed one of those documents had not been created until 15 March 2009. Accordingly, I ruled that they were inadmissible.
In answer to a question from the Bench as to why he considered he had not been considered fairly the applicant told the Court that the persecution that had suffered for his Christianity was a fact and he took issue with the fact that the Tribunal had not accepted his evidence on that point. He also took issue with the Tribunal's assessment that the risk of persecution he would face in China on his return was low and he also argued that the Tribunal had an unrealistically high expectation of the level of knowledge of Christianity that would be shown by Christians in China.
In answer to a question from the Bench as to why he had not replied to the s.424A letter from the Tribunal dated 10 November 2008 the applicant conceded that he had given that particular post office box number on his application but said that that was the post office box for the agent who had assisted him and that the agent had not given him a copy of the Tribunal's letter or even made him aware of it. The applicant asked for additional time in order to obtain a translation from English into Chinese of the contents of the compact disk of the Tribunal hearing. I note that the applicant had received that compact disk on the day of the Tribunal hearing which was 8 December 2008.
He did not bring the CD to the Court so it was not possible to play the CD if that had been considered necessary. I am not of a view that I should grant an adjournment at this stage to enable the applicant to obtain a transcription and translation of the contents of the CD that he received three months ago.
Ms Kelso, solicitor, who appeared for the Minister submitted that the applicant's oral submissions did not take the matter any further forward because the applicant was challenging the Tribunal's factual findings which amounts to merits review. The applicant, in reply, confirmed that he had received the CD of the Tribunal hearing after the Tribunal hearing but had not been working at the time and did not have the money to have it translated. He reiterated his claim that not every Christian in China would have a deep understanding of the Bible which is what he believed the Tribunal expected.
In dealing with the application. The two grounds of review are general in their nature. Each one of them makes a claim of unfairness but that claim seems to relate more to a disagreement with the Tribunal's factual findings than it does to any claim of procedural unfairness of a type that might result in a breach of s.425 of the Migration Act. It is a fact of course that s.422B of the Migration Act provides that Div.4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
As to s.425 itself; the Tribunal wrote to the applicant in plenty of time and invited him to a hearing. The Tribunal provided him with an interpreter in his language of choice, which is Mandarin, and the applicant gave evidence. The Tribunal quite properly in my view heard oral evidence by telephone from two witnesses whom the applicant wished to give evidence. The Tribunal considered the evidence of those witnesses and considered the applicant's evidence.
There does not appear to me to be any instance at the hearing of the Tribunal relying on an issue which was not raised with the applicant or which the applicant was not aware prior to the hearing. I am not satisfied that any breach of s.425 of the Act has been made out. The Tribunal did write to the applicant on 10 November 2008 putting certain information to the applicant in a letter intended to comply with s.424A of the Migration Act.
That information was largely the applicant's oral evidence to the delegate in the interview with the delegate on 5 September 2008. I note that s.424A3(ba) provides that the section does not apply to information,
That the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the department.
I take that to mean that documentary evidence submitted by the applicant in the course of an application for a protection visa would be covered by the exception in s.424A3 but oral evidence such as an account of what the applicant told the Minister's delegate during an interview would be excluded from the exception in s.424A3. It is for this reason that the Tribunal correctly in my view put this material to the applicant in its s.424A letter.
The applicant has said that he never received that letter. In my view that is not a matter that will assist him before the Court. The letter was sent to the address provided by the applicant as the address for correspondence in his application for review by the Refugee Review Tribunal. It may well have been a post office box used by the applicant's migration agent and it may well be that the applicant himself never went to that post office box and extracted mail from it, that does not provide any evidence that the Tribunal did not comply with s.424A.
If it transpired as the applicant appears to suggest that his migration agent did not make him aware of the contents of that letter it may well be that the applicant should have recourse to action against the agent, but it does not disclose any jurisdictional error on the part of the Tribunal. It also appears clear that the Tribunal discussed relevant issues with the applicant at the hearing. I am also mindful of the fact that the Tribunal considered the applicant's conduct in Australia to which the evidence of the two witnesses was directed, but the Tribunal was not satisfied that that conduct was entered into other than for the purpose of strengthening the applicant's refugee claims. Accordingly, disregarded that evidence under the provisions of ss.91R3 of the Migration Act. In my view the Tribunal did not fall into error in making that finding.
The applicant's grounds and the applicant's submissions are focussed directly on a challenge to the Tribunal's factual findings especially the Tribunal's adverse finding as to the applicant's credibility. The claims of unfairness in both ground 1 and ground 2 relate not to any alleged procedural irregularity but to the applicant's dissatisfaction with the outcome based on the Tribunal's factual findings.
It is clear that the Tribunal rejected the applicant's claims because of its adverse view as to the applicant's credibility. It is well established by such cases Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham[5] that credibility is a factual matter and it falls entirely within the province of the administrative decision maker; in this case the Refugee Review Tribunal.
[5] (2000) 168 ALR 407; [2000] HCA 1
So long as there is evidence upon which a factual finding including a factual finding as to credibility can be made then there is no scope for intervention by a Court conducting judicial review. The Tribunal, in its findings, set out in paras.83 through to 98 why it made the findings adverse to the applicant's credibility and in particular the evidence before it that led to those findings. In my view the Tribunal did not fall into error when it made the adverse assessment of credibility that it did.
The applicant of course has sought to challenge the Tribunal's factual findings but this, as Ms Kelso has correctly submitted, is no more than an attempt at merits review which is not permissible before a Court conducting judicial review of an administrative decision. It follows that the applicant's grounds of review have not been made out. I am mindful of the fact that the applicant is not legally represented although he has had the benefit of advice from a barrister on the RRT Legal Advice Panel.
My own independent assessment of the Tribunal decision and supporting documents does not disclose any arguable case for jurisdictional error not raised by the applicant. Ms Kelso, who appears for the Minister bearing in mind the requirements of the Minister to be a model litigant, was not able to identify to the Court any other arguable jurisdictional error that needed to be considered by the Court.
I am satisfied that there is no jurisdictional error in the Tribunal decision. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. Under s.474(1) orders in the nature of certiorari and mandamus are not available in any Court. It follows then that the application must be dismissed and I so order.

There is an application for costs on behalf of the first respondent Minister in the sum of $3900. The applicant has been unsuccessful in his claim and in this jurisdiction it is appropriate for a successful party to receive the benefit of a costs order. The amount sough which is $3900 is well within the scale provided in the Federal Magistrates Court Rules. It is a relatively modest sum.
Against this the applicant claims that he is not in employment and has not had employment for a long time, and as such he does not have the funds to meet that. Whilst that is not a ground for not making a costs order it is certainly a matter that a Court should take into account when assessing whether to allow time to pay. I propose to allow four months to pay.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 25 March 2009