SZNEK v Minister for Immigration
[2009] FMCA 250
•31 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNEK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 250 |
| 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; 91R(3); 91S; 474; pt.8 div.2 |
| 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 |
| Applicant: | SZNEK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 156 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 March 2009 |
| Date of last submission: | 27 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2009 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Ms J. Dinihan, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 156 of 2009
| SZNEK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
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 23 December 2008 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) of Christian faith and previously a farmer by trade (“the Applicant”).
The Applicant arrived in Australia on 20 May 2008 having departed legally from Beijing on a passport issued in his own name and a temporary business visa issued on 5 May 2008.
On 16 June 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 13 August 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 19 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 23 December 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 22 January 2009, 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
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by the authorities in China by reason of his and his wife’s Christianity. The Applicant stated that in October 2007 his wife was detained because she was spreading “the Gospel door by door in the local area”. The Applicant stated that he complained to the local government who called police resulting in the Applicant’s arrest and detention for three months. The Applicant stated that he was mistreated during his detention.
The Delegate’s decision
On 18 July 2008, the Applicant attended an interview to discuss his protection visa claims.
On 13 August 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 Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate found that the Applicant was not a committed Christian and had fabricated his claims in order to obtain a protection visa.
The Tribunal’s review and decision
On 19 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided a statement in support of his review application, dated 11 November 2008, in which he stated that he attended the Bread of Life Christian Church at Ashfield each Sunday and studied the Bible in his free time.
On 26 September 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 12 November 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave oral evidence. The Tribunal’s letter invited the Applicant to send to the Tribunal any additional information that he wished the Tribunal to consider. The Applicant stated that if he were to return to China the local government would continue to persecute him because of his beliefs.
On 12 November 2008, the Applicant gave evidence at a hearing before the Tribunal. The Tribunal had regard to the Applicant’s letter dated 11 November 2008 and a statement from Mr Jin Han corroborating the Applicant’s attendance at church each week and stating that the Applicant liked to read the Bible and believed all the stories.
The Tribunal accurately summarised the Applicant’s claims made in support of his protection visa application. The Tribunal explored the Applicant’s claims at the hearing and noted exchanges it had with the Applicant about his claims. The Tribunal put to the Applicant matters of concern that it had about his evidence, in particular inconsistencies in his claims and evidence. A fair reading of the Tribunal’s decision record makes clear that the Tribunal had detailed exchanges with the Applicant about his evidence, in particular, his Christian beliefs. The Tribunal noted that it put to the Applicant that it had serious concerns about the level of knowledge the Applicant had about the Christian faith and noted the Applicant’s responses. The Tribunal put to the Applicant that the Applicant had been able to describe very little of his Christian observance in China. It also put to the Applicant that, based on his evidence at the hearing and “his scant knowledge of Christian beliefs”, the Tribunal may find that the Applicant had never been a practicing Christian in China.
The Tribunal also explained to the Applicant that, if the Tribunal formed the view that he had attended church in Sydney for the purpose of enhancing his refugee claims, the Tribunal would be required to disregard that conduct. The Tribunal noted the Applicant’s responses.
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. The Applicant was directed to file and serve any evidence on which he intended to rely in support of his application, including a transcript of the Tribunal hearing. However, no evidence or written submissions were provided by the Applicant in support of his application to this Court. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and the exchanges it had with the Applicant about his evidence.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for First Respondent in his written submissions as follows:
“13. In its decision the Tribunal affirmed the delegate’s decision not to grant a protection visa to the Applicant.
14. In coming to its decision firstly, the Tribunal reviewed the applicable law in unobjectionable terms. It then set out the claims and evidence provided by the Applicants. Finally, it set out its findings and reasons.
15. The Tribunal found the Applicant’s evidence was internally inconsistent and implausible and further that he was not a credible witness for the following reasons[1]:
[1] GB at 113-116.
a. it did not accept the Applicant was a practising Christian in China due to his level of knowledge about Christianity;
b. it was not plausible that he would have relocated to Shenzhen and remained there for 6 years and yet did not seek to bring his wife to join him even following the claimed detentions in 2007;
c. it found the evidence surrounding the claimed detentions implausible;
d. it did not accept that the Applicant’s wife was detained because of her Christian belief and practise in 2007; and
e. it did not accept that the Applicant was a practising Christian in China or that he was detained in late 2007 for reasons associated with his own Christian beliefs or that of his wife.
16. The Tribunal found the Applicant’s attendance at the “Bread of Life” Church was motivated by a desire to strengthen his refugee claims, and therefore the Tribunal disregarded this conduct in accordance with s.91R(3) of the Act[2].
17. The Tribunal did not accept the Applicant was a Christian. The Tribunal was not satisfied the Applicant would practise the Christian faith if he returned to China in the reasonably foreseeable future[3].
18. The Tribunal found the Applicant did not have a well-founded fear of Convention-related persecution. The Tribunal found the Applicant was not a person to whom Australia owed protection under the Act.”
[2] GB at 116.
[3] GB at 115-116.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 2 March 2009, the Applicant attended a directions hearing before this Court. The Court also explained to the Applicant that the grounds of his application made bare assertions that did not disclose any error capable of review by this Court. The Applicant 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 including a transcript or tapes of the Tribunal hearing. On that occasion, it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake that goes to the jurisdiction of the Tribunal. No amended application or evidence was 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 Court also provided to the Applicant, headed in his own language, a contact list of providers of legal assistance and interpreting services. The Applicant has participated in the Court’s panel advice scheme and received advice from Mr Turner, solicitor.
At the directions hearing, the Court also provided to the Applicant a copy of the applicable costs schedule of the Court and explained to the Applicant the consequences that would follow for him if a costs order was made against him. Namely, that whilst ever any costs order remains unpaid it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected. The Court then confirmed with the Applicant that he wished to continue with his application.
The Applicant confirmed that he relied on the grounds contained in the application filed on 22 January 2009.
The grounds of the application are expressed to be as follows:
“1. Jurisdictional errors have been made.
2. Fairness has been denied.”
Neither of the grounds was supported by particulars, evidence or written submissions, nor did either of the grounds disclose any error capable of review by this Court.
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 made no meaningful submission in support of his application other than to say that the Tribunal had not believed him and that what he had told the Tribunal was true and he is a Christian.
A fair reading of the Tribunal’s decision makes clear that the Tribunal explored in detail the Applicant’s claims; put to the Applicant concerns it had about his claims and evidence; and, noted the Applicant’s responses.
The Tribunal found the Applicant’s evidence to be “internally inconsistent and implausible”. The Tribunal comprehensively rejected all claims made by the Applicant, including the Applicant’s claim that he was a practicing Christian in China and was detained for that reason. The Tribunal also rejected the Applicant’s claims that his wife was detained in 2007 by reason of her Christian beliefs. The Tribunal rejected the Applicant’s claims of detention as a result of protests and appeals alleged to have been made by the Applicant following his wife’s alleged detention. The Tribunal found the Applicant’s knowledge of Christianity to be “scant”.
The Tribunal accepted that the Applicant had attended the Bread of Life Church in Ashfield from around August 2008. However, having regard to the Tribunal’s adverse credibility findings and its rejection of the Applicant’s claims of involvement in a Christian church in China, the Tribunal was not satisfied that the Applicant engaged in this conduct in Australia other than for the purpose of strengthening his refugee claims. Accordingly, correctly, the Tribunal disregarded the Applicant’s conduct in Australia in accordance with s.91R(3) of the Act.
The Tribunal did not accept that the Applicant is presently a Christian and was not satisfied that the Applicant would practice Christianity if he were to return to China in the reasonably foreseeable future. In the circumstances, the Tribunal was not satisfied that there was a real chance that the Applicant would suffer harm in China for a Convention-related reason.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. 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).
Otherwise, the Applicant’s complaints about the Tribunal decision are no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite 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 41per Mason J).
In the circumstances, the grounds of the application are rejected.
Conclusion
A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; invited the Applicant to come to a hearing; explored the Applicant’s claims with him at the hearing; and, 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 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 which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and 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 forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 31 March 2009
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