SZNFG v Minister for Immigration
[2009] FMCA 496
•25 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 496 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was required to obtain documents relating to the applicant’s 456 visa application in accordance only with s.424 of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424; 424(2); 424B; 474; pt.8 div.2 |
| SZKTI v Minister for Immigration and Citizenship & Anor (2008) 168 FCR 256 SZKCQ v Minister for Immigration and Citizenship & Anor (2008) 170 FCR 236 SZLPO v Minister for Immigration and Citizenship& Anor (2009) FCAFC 51 SZLPP v Minister for Immigration and Citizenship& Anor (2009) FCAFC 51 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZNFG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 247 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 May 2009 |
| Date of last submission: | 25 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2009 |
REPRESENTATION
| The Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Ms T. Wong |
| Solicitors for the Respondent: | Ms E. Baggett, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 247 of 2009
| SZNFG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
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 8 January 2009 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 25 March 2008 having departed legally from Beijing on a passport issued in his own name and a subclass 456 business visa issued on 13 March 2008.
On 8 May 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 21 August 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 23 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 8 January 2009, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 February 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 Chinese authorities by reason of his involvement with illegal Christian gatherings. He claimed that during a visit by two Hong Kong priests at the end of 2006 their place of worship was searched by authorities and Christian pamphlets found. The Applicant claimed that, though the Hong Kong priests left China undetected, he and his parents were detained and questioned on 24 December 2006 “by different groups of police” and after their release were watched closely by the Chinese authorities.
The Delegate’s decision
On 21 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 Convention.
The Delegate found that the Applicant had not provided any detail or evidence to support his claim of being “a genuine attendee of house church gatherings in China”. The Delegate also noted that the Applicant had not clearly explained why he was unable to worship at government-sanctioned churches in China and was not satisfied that the Applicant was of any interest to authorities at the time of his departure from China.
The Tribunal’s review and decision
On 23 September 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 15 October 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.
On 12 November 2008, the Applicant gave evidence at the hearing before the Tribunal at which the Applicant expanded upon his written claims. The Applicant added a new claim that, in breach of China’s one child policy, he had four children in China and therefore feared persecution from Chinese family planning officials.
On 4 December 2008, the Tribunal wrote to the Applicant giving him information that may be part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it.
The Tribunal noted in its decision record that it received no reply to this letter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“The Tribunal held that there was a number of inconsistencies and implausibilities in the Applicant's claims concerning the one-child policy, including (CB 105-106):
the failure of the Applicant to mention that he had four children or was suffering difficulties due to the one-child policy at any time prior to the Tribunal hearing;
the claim of the Applicant that family planning officials could demolish his house or arrest him for his breaches was unsupported by independent country information;
the claim of the Applicant that he was in hiding from family planning officials from 1996 was inconsistent with the Applicant’s claim that he was still able to carry on his daily work activities over such a length of time; and
inconsistencies in the Applicant's evidence regarding where his wife was living.
The Tribunal therefore did not find the Applicant credible in his claim that he and his wife were currently at risk of harm because of breaches of the family planning laws: CB 106 at [112].
With respect to the Applicant's claims regarding his Christianity, the Tribunal accepted the possibility that the Applicant was a Christian in China and that he was a practising Christian in a legal registered church: CB 107 at [115], [118].
The Tribunal found, however, that the Applicant gave inconsistent and implausible evidence regarding his claims that the church he attended was subject to a restriction or curfew on 24 December 2006: CB 108-9 at [121]-[129]. These implausibilities and inconsistencies led the Tribunal to the view that the Applicant was not detained, nor was the Applicant's church subject to a curfew or restriction on its operations: CB 109 at [129].
The Tribunal determined that the Applicant and his religious group had not come to the authorities' attention in any adverse way because their religious activities were officially accepted as a registered church and they had not committed any breaches of the law: CB 109 at [132].
In relation to the Applicant's activities in Australia, the Tribunal determined that s.91R(3) of the Act did not apply because it was satisfied that the reason for the Applicant's attendance at the Bread of Life Christian Church in Sydney was because he was a Christian: CB 109 at [135]. However, the Tribunal held that the Applicant's religious activities in Australia would not lead to religious persecution in China, either now or in the foreseeable future: CB 110 at [135].
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and affirmed the decision of the Minister's delegate not to grant the Applicant a protection visa: CB 110 at [137]. ”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 4 March 2009, the Applicant attended a directions hearing before this Court and 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. The Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit. 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. On 21 April 2009 the Applicant filed an amended application.
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 legal advice scheme and received advice.
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.
At the commencement of the hearing, the Applicant confirmed that he relied only on the ground contained in the amended application filed on 21 April 2009.
The ground of the application is expressed as follows:
“1. That the decision of the second respondent was affected by jurisdictional error:
(a) The second respondent failed to comply with s424 of the Act.
Particulars
The RRT obtained the applicant’s 456 visa file from the Department of Immigration and Citizenship without complying with the procedural requirements of s.424 and 424B of the Migration Act.”
The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support the ground and in support of his application generally. The Applicant confirmed that he had filed no further evidence or submissions in support of his application, other than the accompanying affidavit required by statute and the amended application.
The Applicant was unable to make any meaningful or relevant submissions in support of the ground, other than to say that he had placed is trust in his migration agent to give to the Court all relevant documents.
The ground of the amended application appears to allege that the Tribunal was required to seek information about the Applicant’s 456 visa file from the Department in accordance with ss.424 and 424Bof the Act.
Section 424 is as follows:
“Section 424
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) must be given to the person:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the person is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. ”
Section 424B is as follows:
“Section 424B
Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 424 to give information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.”
True it is that the Tribunal may seek additional information, however, recent authorities have made clear that such request must be made in accordance with s.424B of the Act (SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 (“SZKTI”); SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 (“SZKCQ”)).
The Full Court of the Federal Court of Australia has recently considered the issue of whether documents sought by a tribunal in circumstances similar to the case before this Court, enliven the requirements of s.424 of the Act (SZLPO v Minister for Immigration and Citizenship& Anor (2009) FCAFC 51(“SZLPO”).
In SZLPO the Full Court of the Federal Court considered three separate appeals. The appeal identified as SZLPP v Minister for Immigration and Citizenship& Anor (2009) FCAFC 51 has similar facts to the case before this Court. In SZLPP, at the request of the Tribunal member, an officer of the Tribunal requested by email from the relevant department the applicant’s original visitor visa application and a copy of the results of his health examination.
The Full Court of the Federal Court of Australia per Lindgren, Stone and Bennett JJ held that s.424(2) of the Act does not apply to an invitation to a person to supply a document to the tribunal (at [157]). Further, the request for the documents was not a request that was made to a person who had previously given information to the tribunal and therefore was not “additional information” for the purposes of s.424(2) of the Act (at [159]). Further, the Full Court, in what appears to be an obiter comment, states that their Honours are “inclined to think the word “person” in s.424(2) means a natural person” (at [163]) which would, in the minds of Their Honours, provide a further ground for distinguishing SZKTI and SZKCQ.
The First Respondent read the affidavit of Emily Baggett, affirmed 21 May 2009, annexing a request, dated 12 November 2008, from a Tribunal officer to the Department in the following terms:
“The presiding Member requested all the related papers to 456 visa application for above applicant. Could you please get 456 visa file as soon as possible.”
Plainly, the request is for documents only; is not a request for additional documents; and, is not a request made to a natural person.
I accept the submission of counsel for the First Respondent, Ms Wong, that the fact that a request was for documents and that there had been no previous request to the department, such that the present request was for additional documents, and the request was not made to a natural person are alternative bases why s.424 of the Act are not engaged.
Accordingly, the ground of the amended application is not made out.
Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal explored the Applicant’s further oral claims with him at the hearing in some detail. The Tribunal noted that it put independent country information to the Applicant which suggested that registered churches can practice freely and are not subject to restrictions of the kind identified by the Applicant. The Tribunal noted that the Applicant had stated that his church in China was legal. The Tribunal noted the Applicant’s responses to matters of concern it put to the Applicant about his evidence, particularly in relation to his new claim of a fear of persecution in China by reason of his breach of the one child policy.
The Tribunal also identified with particularity country information to which it had regards concerning China’s one-child policy.
Following the hearing, the Tribunal wrote to the Applicant in a letter dated 4 December 2008, giving the Applicant information that may be part of its reason for affirming the decision under review and inviting the Applicant to comment. The Applicant did not respond to the Tribunal’s letter.
The Tribunal found the Applicant’s evidence to be internally inconsistent as well as inconsistent and implausible having regard to independent country information available to the Tribunal. The Tribunal gave detailed examples in its reasons of the concerns that led it to find the Applicant’s evidence to be inconsistent and implausible.
The Tribunal accepted that the Applicant is a Christian and a member of legal registered church in Fujian province, however, rejected the Applicant’s assertions of having come to the attention of the authorities for that reason.
The Tribunal found the Applicant’s late claim of a fear of persecution because he had breached the one-child policy in China to be “a recent fabrication”.
The Tribunal found that the Applicant would not be of interest should he return to China in the reasonably foreseeable future because of his past religious practice and would be able to attend the registered, legal church and practice his religious belief openly without fear of persecution or a need to modify his behaviour in any way.
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. Adverse 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).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant and explored those claims with the Applicant at a hearing, including the Applicant’s new claims made for the first time at the hearing. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it 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 the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it to which it applied the correct law.
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 fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 25 May 2009
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