SZNFV v Minister for Immigration

[2009] FMCA 414

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFV v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 414

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case – observations on s.422B(3) of the Migration Act 1958 (Cth).

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.420, 422B, 424, 424A, 425, 425A, 426, 441A, 441C
Migration Legislation Amendment Act (No 1) 2008
Migration Regulations 1994 (Cth)

Minister for Immigration v Eshetu [1999] 197 CLR 611
NADH v Minister for Immigration [2004] FCAFC 328
Re Minister for Immigration; Ex parte Applicant S 154/2002 (2003) 201 ALR 437
Re Minister for Immigration; Ex parte Epeabaka [2001] HCA 23
SBCC v Minister for Immigration [2006] FCAFC 129
Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324
SZLLY v Minister for Immigration [2009] FCA 185
SZLTF v Minister for Immigration & Anor [2009] FMCA 401

Applicant: SZNFV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 306 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 K Whittemore
Sparke Helmore

INTERLOCUTORY ORDERS

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

2. 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 306 of 2009

SZNFV

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 Tribunal decision was made on 13 January 2009.  The Tribunal affirmed a decision of a delegate of the minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of political persecution.  The background relating to the applicant's protection visa claims and the Tribunal decision on them set out in the Minister's written submissions filed on 7 April 2009.  I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 8 of those written submissions:

   The applicant, a citizen of the People’s Republic of China, submitted written claims to be a refugee which were set out in his protection visa application (“PVA”): Court Book (“CB”) 28-29.  The applicant claimed to fear persecution as a result of his practice of Christianity. He further claimed that he was raised as a Catholic and baptized when he was seven years old. He claimed that the authorities interfered with his religious observance and on Christmas Day 2006 arrested nuns from his church and wrote down the names of all those in attendance. The applicant fears that his name was recorded and he will be arrested in the future. The applicant and his daughter arrived in Australia so that his daughter could study here. The applicant further claimed to have attended church each Sunday in Flemington. 

   In a decision dated 4 September 2008, the delegate of the Minister refused to grant the applicant a protection visa: CB 52-61. The delegate accepted that the applicant was a practising Catholic but was not satisfied that the applicant’s claimed fears constituted persecution: CB 56.9. 

   On 14 October 2008, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 64-67.

   By a letter dated 27 October 2008, the Tribunal validly invited the applicant, by letter sent to his authorised recipient, to attend a hearing on 11 December 2008 to give oral evidence and present arguments in support of his case: CB 69-70.

   The applicant accepted the invitation to hearing (CB 72) and attended the hearing on 11 December 2008: CB 79. The applicant provided a copy of his passport to the Tribunal: CB 73-78.

   The Tribunal made its decision on 13 January 2009. The Tribunal considered the applicant’s claims made to the delegate and the Tribunal and found that:

   (a)The applicant had a limited knowledge of Christianity, particularly in relation to baptism and the difference between registered and unregistered churches in China: CB 94. The Tribunal was satisfied that the applicant had some knowledge of Christianity but that “overall his knowledge of Christianity is limited raising doubts about him being a genuine Catholic, the veracity of his claims and his credibility”: CB 95.3. 

   (b)The Tribunal did not accept that the applicant had practised Catholicism in China and found that the photographs of him standing in front of a church were at a registered church and were accordingly not corroborative of his claim to have attended an unregistered church: CB 95.9.

   (c)In relation to the applicant’s claim that on Christmas Day in 2006 his family name was recorded by police and nuns were taken away the Tribunal considered that this suggested that the church was a registered church rather than an unregistered church and that the authorities would have taken a much harsher approach if it was an unregistered church: CB 96.5.

   (d)In relation to the claim that the applicant had been involved in religious activities in Australia, the Tribunal was satisfied that this was for the sole purpose of strengthening his claim to be a refugee, and disregarded the letter of support from Father McGee: CB 96.9.

   As a result of these findings the Tribunal was not satisfied that the applicant faced a real chance of suffering serious harm in the reasonably foreseeable future for a Convention reason. Accordingly, he was not a person towards whom Australia owed protection obligations: CB 97.

2. These proceedings began with a show cause application filed on 10 February 2009.  The applicant continues to rely on that application.  I incorporate in this judgment the four grounds in that application:

   1. According to s.422B(3) of the Migration Act 1958 [(Cth) (“the Migration Act”)] the Refugee Review Tribunal made a jurisdictional error by failing to act in a way that is just and fair when processing my protection visa review application.  As concerned in Paragraph 64 and 65 of the Annexure the decision maker appears to expect me to be a Catholic specialist and know all the Catholic principles and ideologies.  Further as stated in Paragraph 46, 50 and 60 of the Annexure, the decision maker also appears to expect me to have a very clear idea of the Catholic religion from the political perspective and kept asking me to explain the difference between registered churches and unregistered churches in China.  I am just a genuine Catholic who happened to attend the Catholic activities in China following the family tradition and simply know that our church back in my hometown is unregistered and therefore understand that our religious activities are underground.  The decision maker states that I changed my claims when saying my religion back in China is underground in the Tribunal hearing.  The decision failed to consider my education level with regards to my religion in a just and fair way.

   2. In the light of s.424(1) of the Migration Act 1958, the Refugee Review Tribunal made a jurisdictional error by failing to consider the relevant information provided when making the decision on protection review application. In the Tribunal hearing I was invited to comment on the situation of our church back in my hometown. I advised that our church was demolished. The decision maker stated that this information would be considered further. However it was not considered when a decision was made to my application. I think this information is important because the decision maker is very concerned about whether our church is registered or unregistered. This information could be part of the evidence that our church is unregistered. (Paragraph 41 of Annexure)

   3. When I attended the Refugee Review Tribunal hearing, I requested for a copy of the sound records of the hearing.  However no sound records have been provided from the Tribunal.

   4. In the Refugee Review Tribunal decision to my protection visa review application, there is no information about the time of notification of decision.  This is confusing.

3. The application is supported by an affidavit which repeats the grounds of review and which I received as a submission.  I received as evidence the court book filed on 4 March 2009.  I invited oral submissions today from the applicant but he relied on his written material. 

4. The fourth ground of review can be dealt with briefly.  It appears to be an attempt to draw some advantage from the recent legislative change which repealed the procedure for the handing down of Tribunal decisions.  Tribunal decisions are now made on the date that the decision record is signed by the presiding member[1].  The court book records that the applicant was notified of the decision by letter on the same day that the decision was made.  The court book records at page 82 that the notification letter was faxed to the applicant's migration agent.  There is nothing irregular about what occurred. 

   [1] Migration Legislation Amendment Act (No 1) 2008 (No 85, 2008), item 19 of Schedule 1

5. The third ground of review concerns the sound recording of the hearing conducted by the Tribunal.  The applicant asserts that he requested a copy of the hearing tapes but they were not provided to him.  Whether or not there is any substance to that assertion, it is known that a sound recording of the hearing exists.  That is because it was provided to the applicant's panel advisor under the Minister's panel advice scheme, Mr Mark Tarrant.  Mr Tarrant certifies that he provided advice to the applicant on 23 March 2009.  I find that whether or not the applicant was given a copy of the sound recording of the Tribunal hearing by the Tribunal, he has suffered no disadvantage.  No jurisdictional error in the Tribunal decision arguably arises from any delay in making the sound recording available. 

6. The second ground asserts a breach of s.424A(1) of the Migration Act. In the absence of particulars of what information should have been provided pursuant to the section but was not, the ground is meaningless. The applicant appears to be asserting that some form of disclosure should have been made in relation to his own evidence. Any relevant information arising from his evidence would not require disclosure because of the exception in s.424A(3)(b) of the Migration Act.

7. The first ground of review asserts a breach of s.422B(3) of the Migration Act. As I understand it, the applicant asserts a breach of that section having regard to the manner in which his religious faith was tested by the Tribunal. I incorporate in this judgment the Minister's submissions in paragraphs 11 through to 14 of those written submissions:

   The Tribunal complied with the requirements set out in s.422B(3) which requires that the “Tribunal must act in a way that is fair and just”. On 27 October 2008, the Tribunal wrote to the applicant’s authorised recipient pursuant to s.425 of the Act advising that it was unable to make a favourable decision on the information before it and inviting him to give oral evidence and present arguments at the hearing. That letter was validly given and complied with ss.425A, 426(1) and 441A(4) of the Act.[2]  The applicant replied to the invitation on 28 October 2008 and attended the hearing on 11 December 2008.

   The decision record indicates that the member provided an opportunity for the applicant to give evidence, raised the difficulties it had with the applicant’s evidence on a number of occasions throughout the hearing and asked the applicant whether he wished to respond to the Tribunal’s comments.  In particular the Tribunal questioned the applicant on his knowledge of Christianity and the differences between unregistered and registered churches. The Tribunal is entitled to exercise some control over the direction of its hearing by asking questions. Proceedings before a tribunal are not adversarial but inquisitorial.[3]  The Tribunal is entitled to ask questions to satisfy itself of matters.[4]

   In particular, the Tribunal was entitled to ask questions relating to the applicant’s knoweldge of Christianity. As noted by the Full Federal Court in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]:

   Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground.

   Accordingly, the Tribunal clearly acted in a way that was fair and just. As such no breach of s.422B(3) is established.

   [2] It was dispatched by fax to the address provided by the applicant to the Tribunal: s.441A(5). The period of notice given was within the prescribed period, that is, 14 days after notification of the hearing is received: reg.4.35D of the Migration Regulations. Notification is taken to have been received at the end of day on which the facsimile was sent: s.441C(5).

   [3] Re Minister for Immigration; Ex parte Applicant S 154/2002 (2003) 201 ALR 437 at [57],

   [4] NADH v Minister for Immigration [2004] FCAFC 328 at [124] to [125], Re Minister for Immigration; Ex parte Epeabaka [2001] HCA 23 at [52].

8. I confirmed with the Minister's solicitor that the final paragraph should be taken to be a submission that, if s.422(B)(3) gives rise to an obligation, the breach of which would constitute a jurisdictional error, about which the Minister makes no submission, no breach is established.  In SZLLY v the Minister for Immigration & Citizenship [2009] FCA 185 at [24] his Honour Perram J made observations concerning the operation of s.422B:

   The common law hearing rule was, of course, predicated on procedural fairness. The effect of s.422B(1) was to embody exhaustively the hearing rule in Pt 7 Div 4. Since, however, there was nothing in Pt 7 Div 4 to indicate that any of the procedural powers within it were to be used fairly it followed, as was pointed out in NAMW, that those powers could be used in ways which were not fair without any infringement of Pt 7 Div 4 occurring. The pronouncement in s.422B(1) of the exhaustive nature of Pt 7 Div 4 made it impossible to argue that there was some other implication of fairness. Section 422B(3) restores, as a procedural concept, fairness and justice. In that context, those words are not references to substantive notions of justice or fairness but can usefully be compared with the content of the same words in the expressions “natural justice” and “procedural fairness”. It may be that the statutory obligation of fairness in s.422B(3) renders much of the debate about SCAR unnecessary. However, it is not necessary to reach a view on that question because s.422B(3) does not apply to this case. Clause 33 of Schedule 1 to the Amending Act makes s.422B(3) inapplicable to applications for review filed before 29 June 2007. The present application was filed on 7 June 2007. Section 422B(3) does not apply.

9. It is clear that his Honour's observations were obiter in the context of the case before him. Nevertheless, Federal Magistrate Cameron relied upon that decision in finding a breach of s.422B(3) in SZLTF v Minister for Immigration & Anor [2009] FMCA 401 at [28]-[33]. At [33] his Honour drew a distinction between s.420(2)(b) which does not impose any obligations the breach of which may be a jurisdictional error and s.422(B)(3) which his Honour saw as imposing a procedural requirement [5]:

   I respectfully agree with Perram J’s comments in SZLLY’s case concerning the significance that s.422B(3) has for the conduct of the Tribunal’s reviews. It should also be noted that, as a procedural provision, it must be distinguished from s.420(2)(b) which provides:

   (2) The Tribunal, in reviewing a decision:

   (a) ...

   (b) must act according to substantial justice and the merits of the case.

   Unlike s.422B(3), s.420(2)(b) imposes no procedural requirements on the Tribunal but, rather, deals with substantive notions of justice and fairness: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 (especially at para.1.1.4); Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 628 [49].

   [5] See Minister for Immigration v Eshetu [1999] 197 CLR 611 at 628

10. For myself, I do not read Perram J’s observations in SZLLY as saying any more than that the apparent effect of the introduction of sub‑section (3) into s.422B is to reinsert a procedural fairness obligation in the exercise of powers and the observation of duties conferred or imposed by Division 4 of Part 7 of the Migration Act. I do not, for example, read his Honour's statements as suggesting that a breach of s.425 or s.424A of the Migration Act might also involve a breach of s.422B(3). I find it difficult to envisage circumstances where a breach of s.422B(3) could be established in the absence of a breach of some other provision of Division 4 of Part 7. If that be right then it suggests that s.422B(3) does not establish a new freestanding obligation, the breach of which would give rise to jurisdictional error. The sub-section would simply illuminate the Tribunal's obligations in relation to its powers and duties found elsewhere in the Division.

11. It may be that if the Tribunal proceeds unfairly then that unfairness might establish a breach of a provision of Division 4 of Part 7 other than s.422B(3) but as a consequence of s.422B(3). Such a breach might amount to jurisdictional error. That does not need to be determined in this case.

12. The applicant's assertion of error relates to the conduct of the hearing by the Tribunal.  The Tribunal's obligations in relation to the hearing opportunity to be afforded an applicant are already well established.  The hearing opportunity must be a real one.  The hearing afforded an applicant must be procedurally fair in that the applicant must have a real opportunity to participate.  The suggestion here is that it was somehow unfair for the Tribunal to test the credibility of the applicant's claims by questioning his religious faith. 

13. Depending on the circumstances the manner in which the Tribunal conducts a hearing may support an allegation of apprehended or even actual bias.  There may be other irregularities or problems in the approach to questioning taken by the Tribunal in a particular case.  However, there is no general objection to an applicant claiming religious persecution being tested about the genuineness of his or her faith.  In my view, there is nothing in the record of the careful and comprehensive questioning of the applicant by the Tribunal in this case that could support an allegation of jurisdictional error.

14. I reject the first round of review.  I conclude that there is nothing either in the show cause application or arising from my own reading of the material which supports an arguable case of jurisdictional error.

15. 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”).

16. Costs should follow the event in this case. The Minister seeks scale costs of $2,935. The applicant stated that he would seek leave to appeal but did not wish 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 sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  6 May 2009