SZNIT v Minister for Immigration
[2009] FMCA 436
•28 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNIT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 436 |
| 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 the People's Republic of China claiming fear of persecution on the basis of her Christian religion – credibility – fraudulent documents – whether Tribunal fell into error by failing to comply with Migration Act 1958 (Cth) s.424AA – no reviewable error. |
| Migration Act 1958 (Cth) ss.91R, 91S, 91X, 424AA, 425 |
| SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 Chan Ye Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 followed |
| Applicant: | SZNIT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 624 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 April 2009 |
| Date of Last Submission: | 28 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr McInerney |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $5,500.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 624 of 2009
| SZNIT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, who is a citizen of China, applies to the Court for review of a decision of the Refugee Review Tribunal affirming the decision not to grant her a Protection (Class XA) visa. The decision was made by the Tribunal in Melbourne. It was signed on 18th February 2009 and handed down on 20th February 2009.
The Applicant asks the Court in her amended application for three orders or writs.
i)A writ of certiorari quashing the Tribunal decisions.
ii)A writ of mandamus requiring the Tribunal to hear and determine her application for a visa according to law.
iii)A writ of prohibition to prevent any action being taken by the First Respondent, the Minister for Immigration & Citizenship, in reliance upon that decision of the Tribunal.
It has been explained to the Applicant today that in order to make the orders that she seeks the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error.
In her amended application the Applicant has set out three grounds in which she claims that the Tribunal has fallen into jurisdictional error:
a)The first ground claims a breach of the Migration Act in that the Applicant's claim was based on four separate integers but the Tribunal made no findings in relation to the third and fourth of those integers.
b)The second ground claims that the Tribunal asked itself the wrong question in relation to the determination of the application under the Act.
c)The third ground claims that the decision of the Tribunal is void for jurisdictional error in that it failed to comply with s.424AA of the Act by not giving clear particulars to the Applicant of information that would be the reason or a part of the reason for affirming the decision that is under review.
Background
The background to this matter is that the Applicant arrived in Australia on 20th September 2007. She applied for a Protection (Class XA) visa on 30th October 2007. In a statement attached to her application printed in both Chinese and English the Applicant advised that she feared persecution because she and her family attended a local family church. She claimed to be a dedicated Christian. Her church had been classified by the government as an anti-revolution sect and was given the name of the "Shouters". She claimed to have been arrested by Fuqing Public Security Bureau officers on 8th June 2004 and the 20th March 2006 and whilst being detained suffered both mentally and physically. She left China for Australia on 20th September 2007.[1]
[1] See Court Book at page 25.
The Applicant produced some documents in Chinese together with English translations. They were documents stating that she had been arrested, detained and released by the Fuqing Public Security Bureau[2].
[2] See Court Book at pages 39-50.
The Applicant authorised a migration agent named Pei Ling Zheng of Melbourne to act for her.
The Department of Immigration & Citizenship in their Melbourne office wrote to Mr Zheng on behalf of the Applicant on 25th March 2008 raising certain issues. The thrust of the issues raised by the Department were that the claims made by the Applicant were very similar and in some respects identical to those made by over 90 other clients who had appointed Pei Ling Zheng as their authorised recipient. Those claims were also similar or identical to many other clients for whom the agent had previously acted. The letter set out the nature of those claims and went onto say:
Information has also been received from the Department of Foreign Affairs and Trade to the effect that so many people experiencing similar patterns of detention and release, despite the reported incidents occurring in different localities and at different times, it is unlikely, which again casts doubts on the credibility of these claims.[3]
[3] See Court Book at page 57.
The letter went onto refer to copies of documents in support of the Applicant's claims and noted that on 30th October 2007 she was asked to provide originals of those documents to enable them to be examined for authenticity. The letter went onto say:
No response was received.
Failure to provide original documents casts further doubts on the credibility of the Applicant's claims to have been detained.[4]
[4] Ibid
I would comment that I have departed from an exact quote of the letter and that in each case I have declined to use the name of the Applicant in order to comply with s.91X of the Migration Act.
The Applicant replied to that letter with a two page statement beginning with an expression of her best wishes to everyone in the Onshore Protection in Victoria. She then set out her response to the six comments raised in the application which essentially related to an affirmation of the truth of her claims and further factual descriptions of her circumstances in China.[5]
[5] See Court Book at pages 61-62.
A delegate of the Minister refused the application for a visa on 5th November 2008. The delegate gave reasons which included:
I have serious concerns about the credibility of the applicant and the veracity of the claims that she has made as follows.[6]
[6] See Court Book at page 84.
The delegate went onto say:
Country information indicates that a range of false documentation is readily available in China and that corruption is rife.
Further on that same page the delegate referred to the fact that the file of the Applicant's application and a number of other documents had been seized by officers of the Department when they visited Mr Zheng's office and went onto say:
The Department's Investigations Section has confirmed that no original documents were seized by the Department relating to the applicant. In view of the advice from the Investigations Section I do not accept the applicant's claim that original detention and release documents were seized by the Department.
The failure to provide original documents for examination casts doubt in my mind on the authenticity of the copied documents provided.[7]
[7] See Court Book at page 85.
The delegate also referred to the Applicant's response to the Department's concerns about credibility but said:
I have noted the applicant's response to these credibility issues dated 29 March 2008. In my view the applicant has not provided information that would overcome the concerns I have about her credibility.[8]
[8] See Court Book at page 86.
Application to the Refugee Review Tribunal
The Applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal invited the Applicant to a hearing which had to be postponed and was rescheduled to 5th January 2009. The Applicant attended the hearing on 5th January 2009 accompanied by a migration agent and gave evidence with the assistance of an interpreter in the Mandarin language.
The Tribunal signed its decision in 18th February 2009 and handed the decision down on 20th February 2009. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
In its decision record the Tribunal made preliminary comments about four key elements to the Convention definition of a refugee and considered the requirements under s.91R and 91S of the Migration Act.
The Tribunal under the heading Claims and Evidence considered the Applicant's background details from her application for a protection visa. It considered her application for review which has been lodged on 17th November 2008 accompanied by a number of documents including:
·A submission from her migration agent,
·Some background information entitled increasing Numbers of Christian Churches Suffering Persecution and
·A bundle of extracts from other Tribunal decisions, in which Local Church members were found to be refugees, containing country information including a reference to a 2002 conviction of three people in Fujian for Bible smuggling.[9]
[9] See Court Book at pages 193-194.
The Tribunal also set out a detailed summary of the Applicant's evidence at the Tribunal hearing.[10] It also considered under the heading “Country Information” extracts from the United States State Department International Religious Freedom Report 2008 and a report of the China Aid Association which the Applicant had referred to entitled “Annual Report of Persecution by the Government on Christian House Churches within Mainland China”.[11]
[10] See Court Book at pages 194-203.
[11] See Court Book at pages 203-205.
The Tribunal’s Findings and Reasons
In its findings and reasons the Tribunal found that the Applicant was a citizen of the People’s Republic of China and assessed her claims against that country as her country of nationality. However, the Tribunal did not accept the Applicant to be a credible witness and set out a number of reasons as to why it made that finding.
It referred to country information about the Chinese government's attitude to non sanctioned religious movements and noted the Applicant's claims that the local family church had been denounced by the government as anti revolutionary and noting that the Applicant was accused of going against the government by engaging in her religious activities. The Tribunal said:
Consequently, the Tribunal is of the view that persecution in China carried out for a reason of a person's religion is also likely to be persecution for reason of the person's imputed political opinion.
The Tribunal finds that the essential and significant reasons that the applicant could experience persecution in China, if her claims are made out, are the reasons of her religion and imputed political opinion, thereby satisfying the requirements of s.91R(1)(a).[12]
[12] See Court Book at page 206.
The Tribunal went on to consider the Applicant's real chance of serious harm and referred amongst other things to the detention documents that the Applicant had submitted with her application.
The Tribunal noted that the Applicant had insisted that those documents were genuine, but the Tribunal did not accept her as a witness of truth in that respect. The Tribunal was satisfied that the detention documents were not genuine.
The Tribunal considered whether or not the Applicant was in fact a Christian and a member of the local church. However, whilst it expressed some doubts it went onto find that:
i)it accepted as true the Applicant's claim to be a Christian and a member of the local family church; and
ii)it was satisfied:
With respect to the applicant's religious activities in Australia, that in attending church meetings here she was engaging in conduct otherwise than for the purposes of strengthening her claim to be a refugee for the purposes of s.91R(3)(b). The Tribunal has therefore taken this conduct into account.[13]
[13] See Court Book at page 207.
However, the Tribunal did not accept that the Applicant had been persecuted in the past as she had claimed. Apart from its doubts about he detention documents the Tribunal the Applicant's claim to be:
Starkly at odds with the country information with respect to the province of Fujian. The Tribunal also finds those claims to be intrinsically implausible.[14]
[14] See Court Book at pages 207-208.
The Tribunal noted the Applicant submitted a medical report which may have supported her claim to have been physically mistreated while in detention, but found that that piece of evidence though potentially corroborative was outweighed by evidence indicating that the other documentary supporting evidence submitted by the Applicant had been fabricated and was outweighed also by the country information, undermining the proposition that persecution of the type claimed by the Applicant was occurring in Fujian.
The Tribunal did not accept that the Applicant had been persecuted in the past on account of her religious beliefs and practices and found that if she were to return to her home region in China there was only a remote chance that she would in the reasonably foreseeable future experience serious harm capable of amounting to persecution for the purposes of ss.91R (1)(b) and 91R(2) of the Act, even if she did participate in local church activities.
Because the Tribunal did not accept that the Applicant had been persecuted in the past and having regard to the country information referred to in the decision the Tribunal was not satisfied that there was a real chance that the Applicant would experience serious harm capable of amounting to persecution for the purpose of s.91R(2) in the reasonably foreseeable future.
The Tribunal was not satisfied the Applicant is a person to whom Australia has protection obligations and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for judicial review in this Court by filing an application and an affidavit in support on 16th March 2009. She filed an amended application on 15th April 2009 and it is on that document which she relies.
I was curious as to why the Applicant who lives in Melbourne, had applied for a protection visa in Melbourne and had applied for review by the Refugee Review Tribunal in Melbourne had sought to have her application for review of the Tribunal decision heard in the Court in Sydney. I make it quite clear that there is no reason why the Applicant should not do so. The Applicant chose to apply to this Court and the Respondents did not object to the application being heard in this Court.
The Applicant has travelled from Melbourne to Sydney to present her case and provided a somewhat confused explanation as to why she had chosen to come to Sydney relating to her fears in Melbourne and the Department's suspicious attitude experienced towards her migration agent Pei Ling Zheng. As I said, however, there is no reason why the Applicant cannot have this matter heard in Sydney if she wishes to and indeed that is what has been done.
The Applicant did not file a written submission but made oral submissions to the Court with the assistance of an interpreter in the Mandarin language. She submitted that she was a member of the local church in China and could not understand why the Tribunal accepted her as a Christian and as a local church member but did not accept that she would face persecution. She asserted that it was impossible for her to give up her belief and her church. She conceded that her previous migration agent, presumably Mr Zheng, might have had a problem with the Department but insisted that her factual claims were the truth. She asked the Court to make a correct judgment and set aside the Tribunal decision.
The Applicant's grounds are threefold. First there is a claim of jurisdictional error under a blanket heading of a failure to comply with the Migration Act. The amended application refers to the Migration Act 1954 although I believe that to be a typographical error. The particulars of the first ground are this:
a) The Application of the Applicant was based upon the following separate integers, that she faced a real chance of persecution were she to be returned to the People’s Republic of China for the reason of her:
i) Religious beliefs as a previous member of and worshiper at an unregistered Local Family Church;
ii) Religious beliefs as a practicing Christian during her period of residence in Australia;
iii) Imputed political opinions as members of organisations such as the Local Family Church are classified as anti-revolutionary by the Chinese government;
iv) Political opinions or membership of a particular social group, in that in cooperating with the Public Security Bureau, she came in the course of that work to warn fellow Christians of planned raids on their activities.
b) The Tribunal's finding for dismissing the application was that it did not accept that the Applicant had been persecuted in the past on account of her religious beliefs and practices.
c) The Tribunal made no findings in relation to integers 3 or 4 of the Applicant's claim and thereby failed to properly determine the application for review under the Act.
d) Though the Tribunal referred to integer 3 in the reasons there was no proper, real or genuine consideration of that integer in the absence of findings made about that claim in the reasons.
The Applicant's second ground claims that the decision of the Tribunal is void for jurisdictional error in that the Tribunal asked itself the wrong question in relation to the determination of the application under the Act. The particulars of that claim are that:
a)The Tribunal determined the application on the basis that were the Applicant to return to China there was only a remote chance that she would experience serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) and 91R(2) of the Act.
b)The Tribunal thereby failed to ask or answer the appropriate test in determining whether the Applicant faced a real chance of persecution.
The third ground claims that the decision of the Tribunal is void for jurisdictional error in that the Tribunal failed to comply with s.424AA of the Act by not giving clear particulars to the Applicant of information that would be the reason or a part of the reason for affirming the decision that is under review. The particulars of that claim are quite lengthy and curiously enough even refer to a fraud on the powers of the Tribunal as described in SZFDE v Minister for Immigration & Citizenship[15]. There is however no claim of a fraud by the Applicant's migration agent and in my view that is not an issue at all.
Considerations
[15] [2007] HCA 35
Ground 1
In dealing with those three grounds I am satisfied that the Tribunal was aware that the Applicant was making claims for persecution not only on the Convention reason of her religion but also on the question of imputed political opinions. The Tribunal said as much at [102] of its decision on page 206 of the Court book.
The Tribunal in dismissing the claim found that it did not accept that she had been persecuted in the past on account of her religious beliefs and practices. What should be made clear in dealing with a claim of political opinion or more correctly imputed political opinion is that the entire imputed political opinion or political opinion claim arises from the same set of facts as the claim of persecution on the basis of religious belief. There is no separate claim of political opinion or imputed political opinion. The claim arises because members of unregistered local churches are regarded as members of an anti revolutionary cult. If one is regarded as anti-revolutionary this is seen by the Chinese government as a political matter.
The Applicant had claimed that she had worked in an organisation which was required to cooperate with the PSB and in that way became aware of the PSB's proposed raids on unregistered churches and tipped off church members. This arose entirely from her religious beliefs. When she was arrested and detained it was on the two occasions that she claimed on 8 June 2004 and 20 March 2006 whilst she was participating in local family church activities.
There is no separate political reason that arises from separate activities or conduct by the Applicant in China. All actions arise from her religious belief and her religious activities and the Tribunal in this case considered that the Applicant was a Christian and was involved in a local family church which was not registered and not approved of by the Chinese government.
It follows therefore that the Tribunal did not fall into error in its findings in that regard and the first ground must be dismissed.
Ground 2
The second ground complains that the Tribunal asked itself the wrong question and in effect misconstrued the provisions of ss.91R(1)(b) and 91R(2). The Tribunal found that there was only a remote chance that the Applicant would experience serious harm capable of amounting to persecution and the claim is that the Tribunal failed to ask or answer the appropriate test of determining whether the Applicant faced a real chance of persecution. Quite clearly this is a distinction without a difference.
True it is that the Tribunal found that there was only a remote chance that the Applicant would in the reasonably foreseeable future experience serious harm capable of amounting to persecution.[16] The Tribunal found that it was not satisfied that there was a real chance that the Applicant would experience serious harm capable of amounting to persecution for the purposes of s.91R(2) in the reasonably foreseeable future.[17]
[16] See Court Book at page 208 at paragraph [110].
[17] See Court Book at page 208, at paragraph [111].
The Tribunal was aware of the real chance test. The Tribunal said in the preamble to its findings that an applicant's fear of persecution for a Convention reason must be a well founded fear which added an objective requirement that the applicant must hold such a fear. The Tribunal said:
A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[18]
[18] See Court Book at page 190
In my view this explanation by the Tribunal is without error and accords with the finding of the High Court particularly Mason CJ in Chan Ye Kin v Minister for Immigration & Ethnic Affairs[19]. In my view the Applicant's second ground for review has not been made out.
[19] (1989) 169 CLR 379 at [389] per Mason CJ and [398] per Dawson J
Ground 3
The third ground complains that the decision is void for jurisdictional error and that the Tribunal failed to comply with s.424AA of the Act by not giving clear particulars of information that would be the reason or a part of the reason for affirming the decision that is under review. There are two answers to that claim. First, in its decision record the Tribunal set out at page 199 that it put information to the Applicant for comment including pursuant to s.424AA explaining how it was relevant inviting the Applicant to comment on or respond to the information and offering her the opportunity to request an adjournment prior to responding. The information put to the Applicant is then set out on subsequent pages and includes the information complained about.
The only evidence before the Court as to whether or not the Tribunal complied with s.424AA of the Act is set out in the Tribunal decision record. In my view there is no reason why I should not accept it. In any event, a failure to comply with s.424AA of the Migration Act is not a jurisdictional error. It has been held by the Full Court of Federal Court per Moore, Tracey and Foster JJ that the Tribunal has a discretion whether or not to invoke the provisions of s.424AA and a decision not to invoke s.424AA for non compliance with the requirements of that section once invoked does not amount to jurisdictional error. (See SZMCD v Minister for Immigration & Citizenship[20].)
[20] [2009] FCAFC 46
It follows that the Applicant's third ground must fail.
Conclusion
I am mindful of the fact that the Applicant is not legally represented in these proceedings. I have considered whether any other arguable ground for jurisdictional error appears.
There were credibility findings made by the Tribunal but credibility is essentially a matter for the administrative decision maker. There was certainly evidence on which it was open to the Tribunal to find that the Applicant's credit was not satisfactory, especially in the area of the authenticity or otherwise of the documents.
The Applicant complained at the hearing that it was not possible for the Tribunal to make an adverse finding about the authenticity about the documents that she had produced unless those documents had been sent away for examination. Of course it is established that no original documents were found when the department seized the files of the former migration agent. In my view the Tribunal did not fall into error in impugning the applicant's credibility. There is no breach of s.425 of the Migration Act.
I can see the Applicant was invited to a hearing in sufficient time. The hearing was rescheduled. The Applicant attended the hearing and gave evidence with the assistance of a Mandarin interpreter. The issues at the hearing related specifically to the Applicant's credibility which was a reason why the delegate rejected the Applicant's claim. There is no breach of s.425 and in my view there is no jurisdictional error.
In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by s.474(2) of the Act and under s.474(1) a privative clause decision is not subject to orders in the nature of certiorari, mandamus or prohibition. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $5,500.00. It is an appropriate figure in the circumstances. It is below the scale figure in the Federal Magistrates Court Rules. I note however that the Applicant says that she has no money and she is not working. That is not a reason not to make a costs order but it is a reason to consider time to pay. I will allow six months to pay.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 13 May 2009
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