SZNFC v Minister for Immigration

[2009] FMCA 412

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFC v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 412

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30
Minister for Immigrationv Wu Shan Liang (1996) 185 CLR 259
NADR v Minister for Immigration [2003] FCAFC 167
SZDGC v Minister for Immigration [2008] FCA 1638

Applicant: SZNFC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 234 of 2009

Judgment of: Driver FM

Hearing date: 4 May 2009

Delivered at: Sydney

Delivered on: 4 May 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The Court directs that the applicant is to file and serve on the respondents a notice of change of address for service by 8 May 2009.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 234 of 2009

SZNFC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 5 January 2009.  A corrected statement of the reasons for decision was issued on 3 February 2009.  The Tribunal affirmed a decision of a delegate Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of political persecution.

2. The background to the applicant's claims and the Tribunal decision on them are set out in written submissions filed on behalf of the Minister on 24 April 2009.  I adopt as background for the purposes of this judgment, with amendments, paragraphs 2 through to 10 of those written submissions:

   The applicant, a citizen of the People’s Republic of China, submitted written claims to be a refugee in her protection visa application: Court Book (CB) 30-31. She claimed to have become interested in Christianity when her mother fell ill in 2006. Her neighbour is a Christian and taught her to pray. She attended local Church gatherings which were held at her neighbour’s home. On 23 December 2007, police raided her neighbour’s home and detained the applicant and five other people from the gathering. The applicant was subsequently released but her neighbour was detained for three months for organising illegal gatherings. The applicant came to Australia on a student guardian visa as her son was a student in Australia. She claimed to have attended Christian Church services in Australia.

   The applicant attended an interview with a delegate of the Minister on 28 August 2008: CB 49.3. In a decision dated 11 September 2008, the delegate refused to grant the applicant a protection visa: CB 47-56. The delegate considered the applicant’s claims but found that she had demonstrated very limited knowledge of Christian beliefs which was not commensurate with her claimed participation in Christian activities: CB 55.2. He also found that the applicant’s baptism certificate provided at the interview (CB 39-40) was inconsistent with her own evidence: CB 55.5. Further, the delegate concluded that the applicant had not substantiated her claim that she was unable to worship at state-sanctioned Churches in China: CB 55.8. The delegate disregarded the applicant’s conduct in Church activities in Australia pursuant to s.91R(3): CB 56.3. Accordingly, the delegate was not satisfied that the applicant had a genuine fear of harm and found that his fear of persecution was not well founded: CB 56.5.

   Proceedings before the Tribunal and the Tribunal decision

   On 2 October 2008, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 58-61.

   By a letter dated 17 October 2008, the applicant was invited by the Tribunal to attend a hearing on 19 November 2008: CB 64-65. The applicant accepted the hearing invitation (CB 66) and attended the hearing on 19 November 2008: CB 77-78. The applicant provided a copy of her passport and copies of photographs to the Tribunal at the hearing: CB 79-90.

   Following the hearing, on 9 December 2008, the Tribunal wrote to the applicant inviting her to comment on or respond to information it considered might be the reason, or a part of the reason, for affirming the delegate’s decision: CB 91-95. That information included aspects of the applicant’s evidence which she gave to the delegate at the interview held on 28 August 2008, as well as information obtained from her application for a student guardian visa. The letter also provided particulars of independent country information which was inconsistent with the applicant’s claims. The letter explained the relevance of the inconsistencies to the review.  The Tribunal noted that on the basis of this evidence, it had concerns about the credibility of the applicant’s claims to have fled China fearing harm and to have been baptised in China.

   On 31 December 2008, the applicant responded to the letter and addressed each of the matters raised in it: CB 96-97.

   The Tribunal made its decision on 5 January 2009[1] and sent it to the applicant’s representative by letter dated 6 January 2009: CB 103-120. The Tribunal rejected the applicant’s claims on the basis of strong adverse credibility findings. It found she had given inconsistent evidence about when, how and where she was baptised, the timing of her application for a visa to come to Australia and her claimed detention. The Tribunal considered the applicant’s explanations submitted in response to the s.424A invitation but ultimately relied on the information contained in the letter to make its adverse credibility findings. The Tribunal placed no weight on the baptismal certificate submitted by the applicant as it was inconsistent with the applicant’s own evidence: CB 119.4.

   The Tribunal did not accept that she had practised Christianity in China. In light of its findings that the applicant was not credible and had not been involved in Christian activity in China, the Tribunal was not satisfied that the applicant’s conduct in attending Church in Australia was undertaken for any reason other than to strengthen her claim to be a refugee: CB 120.3. As such and pursuant to s.91R(3), the Tribunal disregarded the applicant’s conduct in Australia. 

   Accordingly, the Tribunal did not accept the applicant’s claims and was not satisfied that she faced a real chance of serious harm in the reasonably foreseeable future for a Convention reason. Accordingly, she was not a person towards whom Australia owed protection obligations: CB 120.6.

   [1] See Corrigendum dated 3 February 2009, CB 122

3. The applicant relies upon a show cause application filed on 2 February 2009.  In that application, the applicant asserts a want of procedural fairness.  The application is supported by a short affidavit in which the applicant repeats her protection visa claims.  I received that affidavit as a submission.  I received as evidence the court book filed on 18 February 2009.

4. The applicant claimed to have not received the Minister's submissions filed on 24 April 2009 and sent to her by post on the same day.  That is a concern in the light of order 1 made by me on 23 February 2009 concerning the applicant's address for service.  The applicant told me that her agent has ceased to attend to her affairs, notwithstanding that on 23 February 2009 the applicant was confident that her agent would bring to her attention any correspondence directed to the agent's post office box.  The applicant does not want any further correspondence directed to her agent's address.  However, she was not able today to nominate any alternative address for service.  She said she had left the residential address disclosed in her show cause application and she did not know the address where she is currently living.  I directed that the applicant file a notice of change of address for service by 8 May 2009.  It appeared from the applicant's remarks made at the bar table that she has lost confidence in her migration agent.  I informed her of her rights to take up any concerns she may have with the Migration Agents Registration Authority.  The Minister’s submissions were read to the applicant by the interpreter.

5. There is no substance to the assertion of procedural unfairness by the Tribunal.  To that extent, the Minister's written submissions deal adequately with the grounds in the show cause application.  I agree with and incorporate in this judgment, with any necessary amendments, paragraphs 11 through to 16 of those written submissions:

   The applicant has not filed any amended application despite orders made on 23 February 2009 allowing her to do so by 16 March 2009. The application contains two grounds of review namely:

   1.RRT did not weigh my evidence in China and in Sydney. My application was refused unfairly.

   2.Procedural fairness has been denied. RRT did not use favourable cases to my application. They did not count the risk I face if I return to China (sic).

   The first ground alleges that the Tribunal did not ‘weigh’ the applicant’s evidence. The Tribunal clearly considered the applicant’s evidence, including the baptismal certificate she provided, but rejected her claims because it found she was not a witness of truth. Such matters are solely for the Tribunal and do not come within the scope of the Court’s jurisdiction.[2]  The Tribunal was not obliged to ask any particular question of the applicant and the weight to be given to his evidence was a matter for the Tribunal to assess as part of its fact-finding function.

   The High Court has recognised that in determining whether an applicant has a ‘well-founded’ fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.[3]  The Tribunal’s findings had a rational basis and were open to it for the reasons it gave.  There is nothing in the Tribunal’s reasoning to suggest that it involved any illogicality or irrationality of the type contemplated by the High Court in Ex parte S20/2002 to establish jurisdictional error.[4]  In substance, the applicant’s complaint appears to amount to no more than an expression of dissatisfaction with the conclusions drawn by the Tribunal but this amounts to an invitation to the Court to seek to review the merits of his case which the Court cannot do.  … nor is there any error in the Tribunal’s application of s.91R(3) to the conduct undertaken by the applicant in Australia in connection with her claims for refugee status. For these reasons, the first ground must be rejected.

   The second ground alleges that procedural fairness had been denied as the Tribunal did not use ‘favourable cases’ to the applicant’s application. The Tribunal set out in its Decision Record the principles to be applied in determining whether an applicant for a protection visa was a “refugee” within the meaning of the Refugees Convention: CB 105-106.  The Tribunal noted that it had to apply those principles to the facts as they exist when the decision is made, and also had to consider the matter in relation to the reasonably foreseeable future: CB 106.9. 

   The principles applied by the Tribunal in determining the applicant’s review application are as well settled as they are uncontroversial.  The applicant’s complaint cannot be with those principles so much as the outcome of the Tribunal’s application of them to the evidence she gave in support of her claims.  The Tribunal reached the conclusion that the applicant was not a credible witness on the basis of her own evidence.  Having made that finding, which is one of fact not open to review by this Court, the Tribunal proceeded to reject her claims to be a refugee within the meaning of the Convention. 

   The ground further alleges that the Tribunal did not ‘count the risk’ for the applicant should she return to China. The Tribunal correctly considered whether the applicant had a well-founded fear of persecution should she return to China in the reasonably foreseeable future. As the Tribunal did not accept that the applicant had been or had been perceived to be a Christian or a house Church worshipper and as it was not satisfied that any adverse political or religious opinion had been imputed to the applicant whilst she lived in China, it did not accept that there was a real chance she would be persecuted for Convention related reasons if she returned to China in the reasonably foreseeable future: CB 120.6. Again, such matters are solely for the Tribunal and do not come within the scope of the Court’s jurisdiction.[5]  Accordingly, the second ground must fail.

   [2] Minister for Immigration, Local Government and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 at 272; NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 at [9]

   [3] Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang op. cit. at 281-282

   [4] Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 per Gleeson CJ at 9,

   [5] Minister for Immigration, Local Government and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 at 272; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]

6. I have also considered some additional matters.  Paragraph 38 of the Tribunal's reasons (CB 110) discloses that the Tribunal followed an unusual and possibly irregular procedure in physical inspection of the applicant's hands:

   The Tribunal asked her to show the Tribunal her hands.  The Tribunal observed that her hands were smooth.  The Tribunal commented to the applicant that it had observed that her hands were as smooth as the hands of the member whereas the Tribunal had observed the hands of farmers who had worked the land and they were weathered and cracked.  She responded she has been in Australia for a few months and showing the Tribunal her hands stated they were rough.  She pointed to an area on her palm and remarked that this indicated her hands were the hands of a farmer.  The Tribunal commented that her hands appeared to be smoother and softer than the Member’s hands.

7. It does not appear that the action taken by the Tribunal and the comments made by the presiding member played any part in the ultimate resolution of the case before the Tribunal. If it had, the applicant may well have had good cause for complaint. I have considered whether the action taken by the Tribunal and the observations made by the presiding member might indicate pre‑judgement. I think not. The Tribunal decision turned on obvious and important inconsistencies in the applicant's claims and evidence. The procedure followed by the Tribunal in dealing with those inconsistencies was scrupulously fair. The Tribunal decision records that the Tribunal's concerns were discussed with the applicant at the hearing conducted by the Tribunal. That was followed up by a further invitation to comment, purportedly issued pursuant to s.424A of the Migration Act 1958 (Cth). The latter action arguably went beyond the Tribunal's statutory obligations. I conclude that, viewed as a whole, the Tribunal decision does not support any arguable case of apprehended bias.

8. I have also considered whether it might be argued that the Tribunal erred in its treatment of the baptismal certificate provided by the applicant to support her claims of being a Christian in China[6].  At paragraph 83 of its reasons (CB 119), the Tribunal states that it placed no weight on the baptismal certificate.  However, in my view, it is not arguable that the Tribunal fell into the error identified by the Federal Court in SZDGC.  First, the Tribunal made comprehensive and fundamental findings of untruthfulness on the part of the applicant.  I accept the Minister's submission that this should properly be seen as a “poisoned well” case.  In the circumstances, the Tribunal would have been entitled to disregard corroborative documents.  Secondly, the baptismal certificate did not corroborate the applicant's claims because it contradicted her own evidence.  It may be considered that the Tribunal gave the applicant a benefit by placing no weight on the certificate.  If the Tribunal had placed weight on the certificate, it would have added to the inconsistent evidence confronting the Tribunal.  In other words, the certificate increased rather than relieved the applicant's credibility problems.

   [6] See SZDGC v Minister for Immigration [2008] FCA 1638

9. Thirdly, I have considered whether an arguable case of agent fraud might be made in this case.  The applicant made numerous complaints against her migration agent today from the bar table.  However, there is no evidence of any complaint having been made before the Tribunal.  Further, the court book records that the agent appears to have done what was expected of her in the review before the Tribunal.  The applicant claimed that the agent did not faithfully put before the Tribunal what she was asserting, but she admitted that she had not read the material provided on her behalf by the agent.  Indeed, the applicant claims to be illiterate.  While the applicant has now lost confidence in her agent, there is nothing before me that would support an assertion of agent fraud.

10. The applicant also claimed today that she had been nervous at the hearing before the Tribunal.  That may well be so but there is no indication that the Tribunal was on notice of any condition or disability being suffered by the applicant which required special attention.

11. I conclude that there is no arguable case of jurisdictional error either arising from the show cause application or my own examination of the material. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

12. Costs should follow the event in this case. The Minister seeks scale costs of $2,935. The applicant expressed dissatisfaction with the dismissal of her show cause application, but did not want to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $2,935 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  6 May 2009