SZNHB v Minister for Immigration

Case •

[2009] FMCA 650

•

30 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHB v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 650
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of China claiming fear of persecution for reason of religion – credibility – no reviewable error.
Migration Act 1958 (Cth) ss.422, 424A, 425
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000)168 ALR 407; 74 ALJR 405; [2000] HCA 1
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZLQD v Minister for Immigration & Citizenship [2008] FCA 739
SZLXI v Minister for Immigration & Citizenship (2008) 103 ALD 589; [2008] FCA 1270
SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63
Applicant: SZNHB
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 463 of 2009
Judgment of: Scarlett FM
Hearing date: 30 June 2009
Date of Last Submission: 30 June 2009
Delivered at: Sydney
Delivered on: 30 June 2009

REPRESENTATION

Applicant: Appeared in person
Solicitor for the Respondent: Ms Baggett
Solicitors for the Respondent: DLA Phillips Fox

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,865.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 463 of 2009

SZNHB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant is a citizen of China. He asks the Court for judicial review of a decision of the Refugee Review Tribunal made on 28th January 2009.  In its decision the Tribunal affirmed the decision of a Delegate of the Minister for Immigration and Citizenship not to grant the Applicant a protection visa. 

  2. The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 27th February 2009.  In his application he asks the Court to make an order setting aside the Tribunal's decision and to make an order requiring the Tribunal to redetermine his case according to law.

  3. It has been explained to the Applicant that, whilst the Court has the power to make those orders, it must only do so if satisfied that the Tribunal decision is affected by jurisdictional error.

  4. The Applicant has set out three grounds of review.  He claims that the Tribunal fell into error in three ways:

    i)  RRT did not give me a chance to explain the doubts by writing.

    ii)  Procedural fairness has been denied.

    iii) The RRT failed to assess my risk to return to China.  I will serve God and spread gospel in my life.

Background

  1. The background to this matter is that the Applicant arrived in Australia on 11th July 2008. On 14th July, he applied for a Protection (Class XA) visa.  He accompanied his application with a typed statement. A copy of that statement can be found at pages 28 and 29 of the Court Book.

  2. In his statement, the Applicant claimed that there is no freedom of belief in China.  He claimed that in July 2005 a workmate invited him to visit a family church. He then began attending Sunday services on a regular basis.  He claimed that he did not want to attend churches under the control of the Communist Party, so he attended a family church. 

  3. In his statement, the Applicant said that on 5th November 2007 the police broke in and took him and six of his fellow church members to the police station. Afterwards, they were sent to Fuqing Detention House. The Applicant claims that he refused to write a repentance statement and was detained for a month.  He claimed that he was only released after his wife paid the police a sum of money.

  4. On 28th July 2008, a Delegate of the Minister wrote to the Applicant inviting him to attend an interview. The interview was scheduled for Thursday, 28th August 2008. The Applicant attended that interview, which was conducted with the assistance of a Mandarin interpreter. 

  5. The Delegate refused to grant the protection visa on 2nd October 2008.  The Delegate set out reasons for that decision in a Protection (Class XA) visa Decision Record. The Delegate was not satisfied with the credibility of the Applicant's account of his religious belief. The Delegate said:

    At the end of the interview, I put it to the applicant that his knowledge of Christianity is limited and does not correspond with his claim of having been a Christian since 2005 and that he studied the Bible weekly and read many Christian books.[1]

    [1] See Supplementary Court Book at page 65.

  6. The Delegate went on to state:

    The applicant's evidence at interview regarding the circumstances surrounding his claimed arrest is inconsistent with the details he provided on application. Further, the applicant was hesitant and vague and could not respond to many questions with certainty and candour. If he was arrested and detained as claimed, he would have been able to recount details of his claimed arrest and detention with certainty and clarity.  On the applicant's evidence on application and interview, I do not accept that he was arrested and detained as claimed.[2]

    [2] See Supplementary Court Book at page 66.

  7. The Delegate found that there was not a real chance of the Applicant suffering persecution for a Convention reason in the reasonably foreseeable future and found that the Applicant's fear of persecution was not well-founded.

Application for Review by the Refugee Review Tribunal

  1. The Applicant then applied to the Refugee Review Tribunal for review of that decision. He was assisted in preparing his application by a migration agent, Ms Weiming Qian. 

  2. The application was received by the Tribunal on 2nd November 2008. On 20th November 2008, the Tribunal wrote to the Applicant's migration agent inviting the Applicant to attend a hearing.  The hearing was scheduled for 17th December 2008. 

  3. The Applicant, with the assistance of his migration agent, sent to the Tribunal a Response to Hearing Invitation indicating that he wishes to attend the hearing. He asked for an interpreter in the Mandarin language and specified that the interpreter should be female. He indicated that he did not want the Tribunal to take oral evidence from any witnesses, nor did he wish to bring anyone else with him to the hearing.

  4. The Applicant attended the hearing on 17th December 2008. The Tribunal provided an interpreter in the Mandarin language. In accordance with the Applicant's wish, as set out in the Response to Hearing Invitation, it appears that the interpreter was indeed female.  The Applicant produced his Chinese passport to the Tribunal at the hearing and the Tribunal took photocopies of it. 

The Tribunal’s Decision

  1. The Tribunal made its decision on 28th January 2009 and notified the Applicant's migration agent the next day. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa. 

  2. In its decision record, the Tribunal set out the Applicant's claims from his protection visa application and gave a detailed summary of the Applicant's evidence to the Delegate at the interview. The Tribunal also set out a summary of the Applicant's evidence at the hearing. The Tribunal's summary of the Applicant's evidence includes a number of sub-headings about various parts of subject matter. Those sub-headings are the follows:

    ·Fear of returning to China.

    ·Becoming Catholic.

    ·Baptism.

    ·Religious practice in China.

    ·Church building.

    ·Bible and books read.

    ·Religious practice in Australia.

    ·Arrest and detention in China.

    ·Problems after release from detention.

    ·Fundamental Catholic beliefs.

    ·Adverse information.

    ·Final comment.

  3. The Tribunal also set out under the heading "Independent Evidence", a number of background information about Christianity and religious freedom in China.

The Tribunal’s Findings and Reasons

  1. In its Findings and Reasons, the Tribunal accepted that the Applicant was a national of China. However, the Tribunal was not satisfied that the Applicant was a Christian or, specifically, was a Catholic. The Tribunal stated:

    The applicant claims he became a Christian or Catholic in China and was persecuted as a result. He displayed some familiarity with Christianity and Catholicism.  For example, he knew who the current Pope was; he referred to the Bible and the resurrection.  However, this does not satisfy the Tribunal that the applicant is Christian or Catholic as he demonstrated little understanding of basic aspects of Christian or Catholic belief and practice and his evidence about significant aspects of his claims was inconsistent and vague.[3]

    [3] See Court Book at page 34.

  2. The Tribunal set out a number of reasons why it made that finding.  They included the fact that the Applicant could not describe the fundamental beliefs of the Catholic religion when asked to do so, the fact that the Applicant had made no mention before the Tribunal hearing that he was a Catholic, the fact that the Applicant had been inconsistent about when he became a Christian or a Catholic, the Tribunal considered that the Applicant's evidence about his baptism was unconvincing, the Applicant had stated in his protection visa application that, in addition to the Bible, he had read many books about Christ but was very uncertain when asked about those books at the Tribunal hearing.

  3. The Tribunal summarised its findings about the Applicant's evidence in this way:

    In light of the above significant flaws in the applicant's evidence the Tribunal has concluded that the applicant was not credible and that he is not nor ever has been Christian or Catholic.  Thus, the Tribunal does not accept that the applicant became a Christian or Catholic in China or that he attended religious gatherings or a church in China nor that he has attended church or practised Christianity or Catholicism in Australia. It follows that the Tribunal does not accept that the applicant was arrested, detained or harmed by the Chinese authorities or police in any way for reasons of religion.[4]

    [4] See Court Book at page 36.

  4. The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and it affirmed the decision not to grant him a protection visa.

Application for Judicial Review before this Court

  1. The Applicant commenced proceedings in this Court on 27th February 2009 with an application and an affidavit in support. He has not filed an amended application or any written outline of submissions. I note, however, that he has had the benefit of legal advice by a lawyer on the RRT legal advice panel. 

Applicant’s Submissions

  1. The Applicant has attended Court and has made oral submissions.  The Applicant told the Court the Tribunal was unfair to him because it asked him to provide evidence to prove that he had been a Catholic in China. The Applicant did not believe that the Tribunal should require such evidence because a true Catholic has got it in his heart.  He went on to tell the Court that he could easily get evidence of this nature in China but did not think that he should have to do so.

  2. The Applicant claimed that the Tribunal was unfair to him also because a brother from his church had recently obtained a protection visa. He told the Court that he and this other person had both come from China with the same experience and he felt it was unfair that this other person should have obtained a protection visa but he had been refused.  It was explained to the Applicant from the Bench that the Tribunal was required to consider cases on an individual basis and it was not appropriate for the Court to speculate on why some other person had been successful before the Tribunal when the Applicant had not. 

  3. The Applicant told the Court that the Tribunal had asked him for evidence in support of his case and he did not have any.  He said that if the Tribunal really wanted evidence, then the Tribunal could have asked the members of the church at Flemington that he attended.  The Applicant told the Court that he did not want to go back to China and suffer more abuse and in submissions in reply, told the Court that the Tribunal was unfair to him.

  4. The lawyers for the Minister have filed a comprehensive written outline of submissions.  In the written outline, the Minister submits that no jurisdictional error has been made out and that the Tribunal's decision turned on adverse credibility due to the inconsistencies in the Applicant's evidence to the Department and to the Tribunal and his lack of knowledge about Christianity and Catholicism. 

  5. The Minister submits that those credibility findings were open to the Tribunal on the evidence before it and referred the Court to the decision of McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham[5].

    [5] (2000)168 ALR 407; 74 ALJR 405; [2000] HCA 1

  6. It was also submitted on behalf of the Minister that no issue arises under s.91R3 of the Migration Act because the Tribunal just did not accept that the Applicant attended church or practised Christianity or Catholicism in Australia. 

The First Respondent’s Submissions

  1. In reply to the Applicant's grounds as set out in the written application, The Minister submitted that the Tribunal is under no obligation to put its doubts to an applicant in writing in accordance with s.424A but is required to put information to an applicant that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. The submission referred to the decision of SZBYR v Minister for Immigration & Citizenship[6] on the meaning of the word "information" and submitted that there was no information of that type that was required to be put to the Applicant in accordance with s.424A.

    [6] (2007) 235 ALR 609; [2007] HCA 26 at [18]

  2. It was further submitted, however, that the Tribunal did put information about inconsistencies to the Applicant in accordance with the provisions of s.424AA of the Act. The Minister referred to the decision of SZLQD v Minister for Immigration & Citizenship[7] and SZLXI v Minister for Immigration & Citizenship[8]. The submission is that the Tribunal complied with s.424AA and did not fall into error on that basis.

    [7] [2008] FCA 739

    [8] (2008) 103 ALD 589; [2008] FCA 1270 at [27]

  3. As to the second ground, the Minister submits that there is no denial of procedural fairness, referring the Court to the provisions of s.422B of the Migration Act and submitting that the Applicant would need to show that there had been a breach of either s.424A or s.425 in order to show a denial of procedural fairness leading to jurisdictional error. The submission is that the Tribunal did not fail to comply with either section and, consequently, it is submitted that ground 2 has not been made out.

  4. It was further submitted that ground 3 claiming a failure by the Tribunal to assess the Applicant's risk on his return to China is merely a restatement of the Applicant's claims for refugee status and does not make out jurisdictional error as the Court is not able to consider the merits of the Applicant's refugee claims.

  5. In reply to the Applicant's oral submissions, Ms Baggett, solicitor, who appeared for the Minister, submitted that the Applicant's complaint about the Tribunal requiring more evidence from him did not establish jurisdictional error. She also submitted that the Tribunal was not required to approach a third party to verify the Applicant's claims and, in any event, there was no evidence that the Applicant had requested that any witness should be called on his behalf.

Court’s Considerations

  1. In considering the Tribunal decision, it is quite clear that the Tribunal was not satisfied with the Applicant's claims on the basis of credibility.  The Tribunal made that decision for two basic reasons: 

    i)There were significant inconsistencies in the Applicant's evidence.

    ii)There was evidence before the Tribunal that the Applicant lacked the knowledge that a person in his position should have had.

  2. Credibility is a matter for the administrative decision-maker. In this case, the Tribunal.  Although, of course, there must be evidence before the Tribunal to allow it to make such a finding.  Provided there is such evidence, the ascertainment of credibility remains a matter for the Tribunal as McHugh J set out in Durairajasingham at [67]. I am satisfied that the evidence before the Tribunal allowed it to make such a finding about the credibility of the Applicant's claims.

Ground 1 – RRT did not give the Applicant a chance to explain doubts in writing

  1. Dealing with the Applicant's grounds, in particular, there is no breach of s.424A of the Migration Act. The Tribunal's findings about inconsistency in the Applicant's evidence did not require it to put those inconsistencies in writing to the Applicant under the provisions of s.424A of the Migration Act. It is well established that inconsistencies do not constitute information for the purpose of s.424A. In SZBYR v Minister for Immigration and Citizenship[9], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said at [18]:

    However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

    [9] supra

  2. In any event, it is clear the Tribunal did put this material to the Applicant at the hearing in an effort to comply with s.424AA of the Migration Act. This is made particularly clear at [69] of the Tribunal's decision where the Tribunal said, under the heading of "Adverse Information":

    The Tribunal told the applicant that it had information which could, subject to his comments, be the reason or part of the reason that the Tribunal might affirm the decision not to grant him a protection visa.  The applicant was told that the Tribunal would tell him what that information was and why it was relevant and then invite him to comment or respond to it. The Tribunal told the applicant he could comment or respond immediately or seek more time to do so. In each instance referred to below the applicant chose to respond immediately at the hearing.[10]

    [10] See Court Book at page 30.

  3. The Tribunal then, in its decision, in [70] through to [76] put to the Applicant the inconsistencies in his evidence for the Applicant's comments. The Tribunal also, under the heading "Final Comment", offered the opportunity to the Applicant to say anything further to which the Applicant said that the Tribunal should carefully consider all that he had said.

  4. I am satisfied that the Tribunal complied with s.424AA of the Migration Act. It may not have been necessary to do so, since what was put to the Applicant was either a summary of inconsistencies of his evidence or matters from his evidence to the Tribunal or to the Delegate which would not be held to be information within the meaning of s.424A of the Act or would be excluded from the operation of s.424A(1) by one or other of the paragraphs of s.424A(3) of the Act.

  5. The Applicant's first ground of review has not been made out.

Ground 2 – Denial of procedural fairness

  1. Similarly, the Applicant's second ground alleging a denial of procedure fairness by the Tribunal has not been substantiated. Under s.422B of the Migration Act, Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Unless there is a breach of one of the requirements of the sections contained in Division 4, there can be no denial of procedural fairness. Clearly there is no breach of s.424A of the Act.

  2. As to s.425, it is plain that the Tribunal wrote to the Applicant and invited him to attend a hearing. The invitation to the hearing complied with the provisions of s.425A of the Act. The Tribunal provided the Applicant with an interpreter in the language which he required and even provided him with a female interpreter at his request. There is nothing in the Tribunal decision record to indicate that the Applicant was not able to put his case to the Tribunal.

  1. It is also clear from the decision record that the Tribunal's reasons for refusing the application were essentially the same as those of the Delegate. In other words, there was no issue raised at the Tribunal hearing of which the Applicant would have been unaware. The Applicant should have been aware from the Delegate's decision record that the credibility of his account was well and truly in issue. Thus, there is no denial of procedural fairness under s.425 of the Act as set out by the High Court in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs[11]. 

    [11] [2006] HCA 63

  2. It is for those reasons that ground 2 has not been made out. 

Ground 3 – Failed to assess risk

  1. The Tribunal did not fall into error as far as ground 3 is concerned because ground 3 is, as has been correctly submitted, no more than a restatement of the Applicant's claim to be a refugee.

  2. The Applicant claimed that the Tribunal failed to assess the risk to him on his return to China.  The Tribunal specifically dealt with that issue in [92] of the Tribunal decision.  The Tribunal said:

    Further, as the Tribunal does not accept that the applicant is or ever was a Christian or Catholic, it finds that the applicant would not practice or wish to practice Christianity or Catholicism if he returned to China. Thus, there is not a real chance that the applicant will be persecuted in China for reasons of religion.[12]

    [12] See Court Book at page 36.

  3. Thus, ground 3 must fail.

  4. The Applicant in his oral submission has really raised two separate grounds that were not specifically set out in his application. In my view, Ms Baggett who appeared for the Minister, was able to respond to those grounds in her oral submission to the Court.  The grounds that the Applicant raised today were effectively these:

    i)The Tribunal should not have required him to produce evidence to show that he had been a Catholic in China; and,

    ii)If the Tribunal did require such evidence, it was open to the Tribunal to make inquiries from people whom the Applicant claimed to be his fellow church members in Australia.

  5. Neither of those grounds shows jurisdictional error. First, the Tribunal does require applicants to produce evidence to support their claims. The reason is that, under s.65 of the Migration Act, the Minister or, in this case, the Tribunal, standing in the shoes of the Minister, must be affirmatively satisfied that an applicant for a visa is entitled to that visa. If the Tribunal is satisfied that the Applicant meets the criteria for a visa, then the visa must be granted. However, under s.65(1)(b), the Tribunal:

    Section 65 - Decision to grant or refuse to grant visa

    (1)  After considering a valid application for a visa, the Minister: …

    (b)  if not so satisfied, is to refuse to grant the visa.

  6. Here, it was quite clear that the Tribunal was not satisfied that the Applicant met the requirements for a protection visa and said so in [95] of the decision:

    The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.[13]

    [13] See Court Book at page 38.

  7. As the Applicant's second ground that it was open to the Tribunal to make its own inquiries, there is no obligation on the Tribunal to do so.  True it is that, under s.424 of the Act, the Tribunal may seek further information, but it is well established that the Tribunal is under no obligation to do so. It is up to an applicant for a visa to satisfy the Tribunal that the Applicant is entitled to a visa and it is not up to the Tribunal to make out the Applicant's case for him. The Applicant, therefore, has not shown any jurisdictional error on the part of the Tribunal in making its decision. 

Conclusion

  1. The Applicant is not legally represented in the proceedings before the Court today and he has told the Court that he is a stranger in Australia and his English is very poor. He has told the Court that he does not know how to defend himself.  I should make it clear that the Applicant is not required to defend himself because he is not on trial and he is not accused of any crime. Nevertheless, I accept the fact that he is not legally represented. 

  2. It is customary in matters under the Migration Act where an applicant is not legally represented for the Court to make its own independent assessment of the Tribunal's decision. In doing so, I am satisfied that there is no arguable case of jurisdictional error on the part of the Tribunal.

  3. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act. Under that section, privative clause decisions are final and conclusive and are not subject to orders in the nature of certiorari mandamus which are, in effect, the orders that the Applicant seeks in his application.

  4. It follows that, as the Tribunal decision is a privative clause decision, the application for review must be dismissed.

  5. There is an application for costs on behalf of the First Respondent Minister in the sum of $5,865.00.  The Applicant has been unsuccessful in his claim and an order for costs is appropriate.  $5,865.00 is within the scale.  I not that there have been a couple of adjournments, one of which was not the fault of either the Applicant or the Minister.  The Court has unable to hear the matter a week ago, on 23 June, due to illness.  Had there been an application for an order for costs above the scale, I would have been reluctant to grant a higher figure than the scale for that reason. However, the amount claimed is the amount provided by the scale and, in my view, it is an appropriate figure.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  15 July 2009


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0