SZNFO v Minister for Immigration
[2009] FMCA 565
•17 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNFO v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 565 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether s.91R(3) of the Migration Act 1958 (Cth) was engaged – whether the Refugee Review Tribunal was obliged to make factual findings in respect of the applicant’s sur place claims. |
| 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 |
| SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZNFO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 287 of 2009 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 June 2009 |
| Date of last submission: | 2 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2009 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Mr R. Baird, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 287 of 2009
| SZNFO |
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 31 December 2008 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 issue in this case is whether or not the Tribunal breached s.91R(3) of the Act in failing to make preliminary factual findings in respect of the Applicant’s claims of relevant conduct in Australia.
The Applicant arrived in Australia on 11 January 2006 (though in his protection visa application he gave the date 1 January 2006) having departed legally from Shanghai on a passport issued in his own name and a subclass 571 visa. The Applicant then departed Australia on 19 December 2006 and flew to China, returning to Australia on 10 January 2007.
On 11 August 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 12 September 2008, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 2 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 31 December 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 9 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 statutory declaration in support of his protection visa application.
The Applicant stated that he and his parents were Christians and until he was about 7 years he attended an underground church with his parents. The Applicant stated that one day after school his parents took him to a religious gathering at the home of a friend where police came and arrested the Applicant and his parents. The Applicant stated that he and his parents were held at the police station for one day during which time his parents were beaten. The Applicant stated that subsequently his father left the family home because he wished to continue to attend religious gatherings, unlike his mother.
The Applicant claimed his mother, after her arrest, was dismissed from her job and ceased any involvement with religion. The Applicant stated that because of his mother’s record he was ill-treated at school. The Applicant claimed that other students cursed and beat him and stole his money. The Applicant stated that when his father offered to pay for him to study outside China he took the opportunity.
The Applicant stated that since the beginning of 2008 he had been attending a Korean church in Strathfield because he wished to learn about Christianity. The Applicant stated that if he were to return to China he would seek out the church that his parents used to attend and join that group.
The Applicant stated that after he left China his mother went to Korea to work so she could send money to the Applicant to assist with his studies.
The Applicant stated that if he were to return to China he feared that he would be “despised and ill-treated by the people in my town and elsewhere in China because I will still be seen as member of or associated with a Christian cult.” Again, the Applicant stated that he would join an underground church in China and believed he would be persecuted because of that.
The Delegate’s decision
On 13 August 2008, the Department wrote to the Applicant inviting him to come to an interview on 19 August 2008 and to bring any other supporting documents regarding his claims.
The Applicant attended an interview with the Department, however, a Delegate of the Department was not satisfied that the Applicant was a person to whom Australia has protection obligations.
The Delegate identified country information to which it had regard in relation to underground churches, or house churches.
The Delegate expressed doubts as to the credibility of the Applicant’s claims and the genuineness of his fear for Convention related reasons. The Delegate was not satisfied that the Applicant was a practising Christian in China or had been associated with an underground church. Neither was the Delegate satisfied that the Applicant had suffered persecution in China for religious reasons.
The Delegate had regard to the fact that the Applicant lodged his protection visa application 19 months after his last arrival in Australia and more than 2 ½ years since his initial arrival in Australia.
The Delegate found the Applicant’s description of religious services that he claimed to attend in Strathfield to be “very vague and unconvincing” and “displayed a very poor knowledge of what would normally occur at a Christian religious service in Australia.” The Applicant was also unable to name the particular church that he claimed to have attended for at least 4 months in 2008. The Delegate found the Applicant’s claims in relation to his alleged activities as a Christian in Australia to be “flimsy and unsubstantiated”.
The Tribunal’s review and decision
On 2 October 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 21 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 5 December 2008 to give oral evidence and present arguments.
On 5 December 2008, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, material referred to in 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 the solicitor for the First Respondent in written submissions as follows:
“9. The Tribunal made the following comments and findings:
a) having regard to the applicant's responses to questions concerning his understanding and knowledge of Christianity, the Tribunal was satisfied that the applicant only had a "limited knowledge of Christianity, which raised serious doubts about his claim to be a genuine Christian"[1] Further, the Tribunal was not persuaded by the applicant's explanation for his limited knowledge of Christianity, namely "that he was born into a Christian family and he followed his parents". The Tribunal likewise found that the applicant's responses concerning his Christian related activities were vague and lacked detail and this raised doubts about his claims;
b) it was not convinced or persuaded by the applicant's explanation for his delay in lodging his application for a protection visa. Having regard to the evidence as a whole, the Tribunal was satisfied that the circumstances of the applicant's lodgement of his application whilst in detention together with the delay in doing so indicate that the applicant did not have a genuine fear of persecution and this raises doubts about his credibility and the veracity of his claims;[2]
c) the Tribunal found that the applicant was not a genuine Christian and rejected his claims of involvement with the underground church in China and any claimed persecution suffered as a result. The Tribunal did not accept that the applicant had suffered, or that there was a real chance that he would suffer, any harm in the reasonably foreseeable future as a result of his religious beliefs and/or activities, or for any other Convention reason;[3]”
[1] CB 107 at [67]
[2] CB 108 at [71]
[3] CB 108 at [72]
In relation to the Applicant’s claims of having been involved in religious activities in Australia, such as attending church, the Tribunal stated that “even if the Tribunal were to accept that the applicant has been involved in religious activities in Australia, the Tribunal is not satisfied that the applicant has engaged in that conduct in good faith”. The Tribunal was not satisfied that the Applicant had engaged in the conduct claimed in Australia otherwise than for the purpose of strengthening his application for a protection visa. In the circumstances, it disregarded the activities pursuant to s.91R(3) of the Act.
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 9 March 2009, the Applicant attended a directions hearing before a Registrar of this Court and was:
a)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;
b)directed to ensure that any transcript of the Tribunal hearing upon which he intended to rely was verified by affidavit;
c)provided with a contact list of providers of legal assistance and interpreting services, headed in his own language;
d)provided with a copy of the applicable costs schedule of the Court and the consequences that would follow if a costs order was made against him were explained; and
e)referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice.
At the commencement of the hearing, the Applicant confirmed that he relied on the ground contained in the application, filed on 9 February 2009, as follows:
“The Tribunal’s decision was affected by jurisdictional error in that it incorrectly applied S91R(3) of the Act.
Particulars:
Refugee Review Tribunal (“the Tribunal”) was not satisfied the applicant’s conduct in Australia satisfied s 91R(3) of the Act. The applicant claims that he has engaged in religious activities in Australia and he has engaged in these activities in good faith. The purpose of his religious activities is not to strengthen his refugee claims.”
The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of his application generally. The Applicant confirmed that he had filed no evidence or submissions in support of his application, other than the accompanying affidavit required by statute.
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. At the directions hearing on 9 March 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure than any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on a recording of the Tribunal hearing. However, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Applicant provided no further written material in support of his review application.
A fair reading of the Tribunal’s decision record discloses that the Tribunal discussed the Applicant’s “church-related activities in Australia”. The decision record notes that the Tribunal informed the Applicant that, if it was not satisfied that the Applicant had engaged in such conduct otherwise than for strengthening his refugee claims, then the Tribunal must disregard that conduct.
The Tribunal’s decision record discloses that the Tribunal asked the Applicant if there was anything further he wished to say and noted that the only response by the Applicant was that his mother’s status in Korea is illegal.
The Tribunal’s decision record discloses that the Tribunal asked the Applicant if he needed more time to comment on or respond to information that had been provided in the course of the hearing and which may be a reason for affirming the decision under review. The Tribunal noted that the Applicant said that he would like a week to respond. Accordingly, the Tribunal gave the Applicant a further week, to provide any further submissions or documents upon which he intended to rely. The decision record discloses that the Tribunal stated that it explained to the Applicant that if the Tribunal were to reach adverse credibility findings then the Tribunal may not be satisfied that any documents he would send would be authentic and or contain truthful information. The Tribunal also informed the Applicant that country information available to the Tribunal indicated that document fraud is widespread in China.
The Applicant did not provide any further information to the Tribunal in support of his claims.
The Tribunal found the Applicant’s knowledge of Christianity to be limited and had “serious doubts about his claim of being a genuine Christian.” The Tribunal found the Applicant’s responses generally to be vague and lacking in detail.
The Tribunal rejected the Applicant’s claims of being a Christian in China or any past persecution for that reason. The Tribunal found that the Applicant did not have a genuine fear of persecution for that reason. Further, the Tribunal found that there was not a real chance that the Applicant would suffer harm in the reasonably foreseeable future for any Convention related reason.
Those findings were open to the Tribunal 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 (“Ex parte Durairajasingham”) at [67] per McHugh J).
Applicant’s sur place claim
The Tribunal summarised the Applicant’s evidence as follows:
“The Applicant did not come to Australia to apply for protection. He intended to complete his studies and return to China. However, early this year he decided that he wanted to learn more about Christianity and began attending Christian services in Australia. He has always considered himself to be a Christian but it was not until this time that he decided to recommit himself to his faith and learn more about his religion. He has attended religious services regularly since that time, including during the period he was held in Villawood IDC. Based on his parent’s experiences when he was a child and what he has learned about the treatment of Christians who continue to attend underground church groups in China, he fears that he would be detained or face other serious harm because of his religion if he returned to China.”
The Tribunal’s findings in respect of the Applicant’s alleged activities in Australia are as follows:
“The applicant has claimed that he has been involved in religious activities in Australia, such as attending Church. In consideration of the evidence as a whole and given the finding that the applicant is not a genuine Christian, even if the Tribunal were to accept that the applicant has been involved in religious activities in Australia, the Tribunal is not satisfied that the applicant has engaged in that conduct otherwise than for the purpose of strengthening his application for protection visa, as such the Tribunal disregards those activities pursuant to Section 91R(3).” [Emphasis added]
A fair reading of the Tribunal’s decision record does not make clear whether or not the Tribunal accepted that the Applicant had been involved in religious activities of any kind in Australia or not. The Tribunal proceeded to find that, even if it were to accept that the Applicant had engaged in such conduct, it was not satisfied that the Applicant did so otherwise than for strengthening his refugee claims.
In the recent case of SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (“SZJGV”) the Full Court of the Federal Court of Australia stated, inter alia, that “s 91R(3) can only, sensibly, be applied once primary findings of fact have been made” [at 22]. The Full Court went on to state that, if an applicant had claimed to engage in conduct in Australia which caused him to fear persecution if he returned to his country of origin, “the Tribunal must decide whether or not that conduct has occurred.” If a tribunal finds that such conduct has not occurred then there would be nothing to disregard because s.91R(3) is not engaged. However, if a tribunal finds that such conduct did occur, then s.91R(3) is engaged and the tribunal is obliged to consider the purpose for which the applicant engaged in such conduct.
The principle issue that was being considered by the Full Court in SZJGV was the extent to which any conduct found to be engaged in could be taken into account, if at all, by a tribunal in deciding whether an applicant has a well-founded fear for a Convention related reason. In the circumstances, the comments referred to above are obiter. Certainly, the Full Court does not go on to find that a failure by a tribunal, as the relevant decision-maker, to make primary findings of fact in respect of allegations by an applicant of relevant conduct in Australia, is a jurisdictional error.
In the case before this Court, a fair reading of the Tribunal’s decision record makes clear that the Tribunal did not have regard to any of the Church-related activities in which the Applicant claimed to have engaged in Australia in considering whether or not the Applicant had a well-founded fear of persecution for a Convention related reason.
The Tribunal did not make clear findings in respect of the Applicant’s alleged conduct in Australia. However, having regard to the Tribunal’s overall comprehensive credibility findings in respect of the Applicant, it is more likely than not that the Tribunal was not satisfied that the Applicant had engaged in any Christian or Church-related activities in Australia. Indeed, a fair reading of the Tribunal’s decision record as referred to above, suggests that the Tribunal had significant doubts as to whether the Applicant had engaged in such conduct. In those circumstances, s.91R(3) is not engaged.
In my view, merely because the Tribunal considered the Applicant’s purpose for engaging in such conduct, even though it was not satisfied that the Applicant had in fact engaged in such conduct, it cannot be an error that goes to the Tribunal’s jurisdiction for it to do so. The Tribunal did not have regard to any such conduct in affirming the decision under review.
If the Tribunal’s reasons could be read as accepting that the Applicant engaged in such conduct, certainly the Tribunal turned its mind to the relevant question of the Applicant’s purpose for engaging in the conduct and was not persuaded that any such conduct would have been engaged in otherwise than to strengthen the Applicant’s refugee claim. The Tribunal correctly noted that, in such circumstances, it must disregard the conduct.
Even if the failure by the Tribunal was to be an error going to jurisdiction, in the exercise of the Court’s discretion, in my view, relief ought to be refused. All the findings made by the Tribunal 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 (Ex parte Durairajasingham at [67] per McHugh J).
This Applicant has spent two and a half years in Australia and it was not until he was detained that he sought to lodge a protection visa application. As stated above, on his own evidence, the Applicant did not come to Australia to seek protection. He came to Australia to complete his studies. The sur place claim that the Applicant has made relating to his desire to commence studying Christianity by joining a church was not corroborated. Even if it had been corroborated, the Tribunal made a clear finding that having regard to its comprehensive adverse credibility findings, it was not satisfied that the Applicant would have engaged in any such conduct otherwise than for the purpose of strengthening his refugee claims.
The terms of the section do not require the Tribunal to make factual findings. The Tribunal is required to consider claims of conduct in Australia for the principle reason of considering the purpose for which the Applicant may have engaged in such conduct.
The result of the Tribunal’s findings, in this case, is that the Tribunal’s consideration of the purpose for which the Applicant engaged in that conduct hypothetically was predicated on accepting the Applicant’s evidence of such conduct. As stated above, relevantly, the Tribunal disregarded such activities in considering whether the Applicant had a well-founded fear of persecution for a Convention related reason. That is the requirement and effect of s.91R(3) of the Act.
Accordingly, the ground of the application is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a 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 also put to the Applicant independent country information before 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 and 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 sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: Serena Kwong
Date: 17 June 2009
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