SZNJJ v Minister for Immigration
[2009] FMCA 575
•11 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 575 |
| 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 – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.91R(3) – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – no reviewable error. |
| Migration Act 1958 (Cth) ss.91R, 424A, 424, 425, 474 |
| Re Refugee Review Tribunal & Another; Ex parte H & Another (2001) 179 ALR 425 SZJGV v Minister for Immigration & Citizenship (2008) 170 FCR 515 SZLDV v Minister for Immigration & Citizenship [2008] FCA 1211 |
| Applicant: | SZNJJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 699 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 June 2009 |
| Date of Last Submission: | 11 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondent: | Ms Warner-Knight |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs fixed in the sum of $3,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 699 of 2009
| SZNJJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of China. He asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision by a Delegate of the Minister not to grant the Applicant a Protection Class (XA) visa.
The Applicant asks the Court for orders setting aside the Tribunal decision and sending his application for a visa back to the Refugee Review Tribunal for consideration in accordance with the law. It has been explained to the Applicant today that in order for the Court to make those orders the Court must be satisfied that the Tribunal committed a jurisdictional error.
Background
The background to this matter is that the Applicant arrived in Australia on 11th July 2008. He applied for a Protection Class (XA) visa on 14th July.
In that application he said that he had left China because he was a Christian and a member of an underground church. The Applicant said that this was not allowed by the Chinese government and he was persecuted by the authorities. He said that he feared to go back to China because he would again be persecuted as he has a bad record.
A Delegate of the Minister for Immigration & Citizenship refused the application for a visa on 11th October 2008. The Delegate was not satisfied about the Applicant's claims to have been persecuted because he was a member of an underground church. In the Delegate's decision record the Delegate said:
The applicant's claims are brief and unsubstantiated both in his statement of claims lodged with his protection visa application as well as in the departmental interview. At the interview he was asked questions in relation to his Christian beliefs and his need for protection from the Chinese government, and he was unable to provide any credible details or convincible reasons in support of his claims.[1]
[1] See Court Book at page 44.
The Delegate noted that the Applicant had provided no information about his personal religious beliefs and the methods of his religious worship and the Delegate was also unable to accept that the Applicant had been detailed by the Chinese authorities because of his religious beliefs.
The Applicant had made no claims with regard to any specific charges against him, nor had he provided any details of why or where he was detailed or why he was released. The Delegate also noted that the Applicant's passport had been issued to him on 18th July 2007 but he did not leave China for another 12 months.
The Delegate found that to be inconsistent with a genuine fear of persecution. The Delegate also referred to Independent Country Information about the Province of Fujian and noted from the reports that that Province had been much more relaxed than other parts of China about unregistered churches.
The Delegate found there was no objective evidence to show that the Applicant did hold a profile that would attract adverse attention from the authorities and noted that he was able to leave China using a valid passport issued in his own name. For those reasons the Delegate found that the Applicant's fear of Convention related persecution was not well founded.
Application to the Refugee Review Tribunal
On 5th November 2008 the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal wrote to him on 12th December 2008 inviting him to attend a hearing to take place on 28th January 2009. A week later the Tribunal wrote to the Applicant on 19th December 2008 rescheduling the hearing to 30th January 2009. The Applicant attended the hearing on that day; he gave evidence with the assistance of an interpreter in the Fujian dialect.
The Applicant provided his passport to the Tribunal in support of his claim. He did not provide any other documentary evidence. The Tribunal signed its decision on 23rd February 2009 and handed that decision down the following day, 24th February 2009. The Tribunal affirmed the Delegate's decision not to grant the Applicant a protection visa. In its decision record the Tribunal set out a summary of the Applicant's claims and his evidence at the Tribunal hearing.
The Tribunal referred to a document entitled "Human Rights in China" which had also been referred to by the Delegate in the Delegate's reasons for refusing the application for the visa. The Tribunal noted that it had passages from two documents of Country Information translated and read to the Applicant. One was a passage from a statement to the US Commission on International Religious Freedom and the other was the United States Department of State's International Religious Freedom Report for 2006.
The Tribunal noted at page 72 of the Court Book that passages about house churches in China had been translated and read to the Applicant and that he was given the opportunity to comment on them. The Tribunal noted that the Applicant made no further comment about that material. The Tribunal referred to other Country Information about religious policy in the Fujian Province of China.
The Tribunal’s Findings and Reasons
The Tribunal found that the Applicant was a citizen of China based on his passport issued by the People's Republic of China however the Tribunal did not accept other key parts of the Applicant's claim. The Tribunal said:
There is no objective evidence that the applicant is a practising Christian or that he has a profile which could attract adverse attention from the Chinese authorities if he were to return to China. There is evidence which could lead the Tribunal to conclude that the applicant is not a reliable witness for the following reasons.[2]
[2] See Court Book at page 74.
The reasons that the Tribunal set out were these:
a)The Applicant confirmed that his original application for a visa contained false personal information about his occupation.
b)The Tribunal did not accept the Applicant's claim that he was illiterate or that he was unaware of a fraudulent application having been made on his behalf.
c)The Tribunal accepted that the Applicant held a valid passport issued to him nearly a year before he left China and found that that confirmed the Tribunal's view that the Applicant continued to work in his trade for a year to save money before he left for Australia.
d)The Tribunal was not convinced that the Applicant was a committed Christian for eight years because of his very limited knowledge of Christian history and beliefs.
e)The Tribunal found that the Applicant was most imprecise in regard to the actual circumstances, dates and times surrounding key events of relevance to his claims, especially the period of his detention and his claimed release with the assistance of friends of his mother.
The Tribunal considered the Applicant's activities in Australia; it noted his claim that while he was living in Brisbane he attended two church services but found that those claims were vague and lacking in detail. The Tribunal also considered that the Applicant's claims were so vague that it was not satisfied that he did attend those church services. Further the Tribunal noted that when the Applicant arrived in Sydney he did not seek any support from other Chinese Christians in the area where he lived.
The Tribunal expressed the view that if the Applicant's claims of persecution in China were true he would have exercised his right to attend religious services in Australia. The fact that the Applicant did not do so and gave an excuse that he did not know where the churches were led to the Tribunal disbelieving his claim that he is or had been a Christian.
Consequently the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugee's Convention and it affirmed the decision not to grant him a Protection Class (XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court on 25th March 2009. He filed an application and an affidavit in support. He confirmed that he had not filed any other documents in Court since then. In his application he sets out three grounds of relief:
i)The Tribunal failed to act judicially and afford procedural fairness;
ii)The Tribunal failed to comply with s.424A of the Migration Act.
iii)The Tribunal failed to comply with s.91R(3) of the Migration Act.
Submissions
The Applicant did not file any written outline of submissions at Court but he attended the Court and was asked questions from the Bench about his specific claims. In respect of his first ground, which was a claim that the Tribunal failed to act judicially and afford procedural fairness, he said that the Tribunal asked him questions and he answered all of the questions. When asked why this was not fair the Applicant reiterated his claim that the Tribunal asked him questions and he answered all the questions.
In respect of the Applicant's second ground claiming that the Tribunal failed to comply with the provisions of s.424A of the Migration Act the Applicant was asked to provide details of the information about which the Tribunal should have written to him under the provisions of s.424A of the Act. The Applicant provided no details other than to say that the Tribunal did not write to him.
In respect of the Applicant's third ground alleging a failure to comply with s.91R(3) of the Migration Act the Applicant was unable to provide any further information as to what were the particulars of that claim. The Applicant was given the opportunity to address the Court in support of his case. He told the Court that he had met with the lawyer who provided him with legal advice under the Refugee Review Tribunal Panel Legal Advice Scheme, he complained that he had not received any written outline of advice from the lawyer.
I note from the Court file that there appears a certificate by a panel member confirming that the barrister concerned met with the Applicant on 17th May 2009 with the aid of an interpreter in the Mandarin language. The certificate indicates that written advice was provided to the Applicant on that same day. The Applicant made no further submissions.
The lawyers for the Minister have provided a comprehensive outline of submissions in support of the Minister's case. In short the Minister submits that the grounds of review are entirely unparticularised and do not disclose any jurisdictional error.
Considerations
Ground 1 – The Tribunal failed to act judicially and afford procedural fairness.
Dealing with the Applicant's first claim, which is a claim that the Tribunal failed to act judicially and failed to afford procedural fairness, I note that the Tribunal is not required to act judicially but operates in an inquisitorial fashion. (See Re Refugee Review Tribunal & Another; Ex parte H & Another[3]).
[3] (2001) 179 ALR 425 at [29]
The Tribunal's requirements to provide procedural fairness are such that it must comply with the requirements of Division 4 of Part 7 of the Migration Act. This is made clear by s.422B of the Migration Act. In my view the Tribunal complied with the requirements of s.425 of the Act. It invited him to attend the hearing and it gave him more than sufficient written notice of the time, date and place of that hearing.
He was provided with the assistance of an interpreter in the dialect which he requested. There is nothing to indicate that he was not able to give evidence to the Tribunal in support of his case. In my view there is no failure by the Tribunal to provide procedural fairness. The first ground of review has therefore not been made out.
Ground 2 - The Tribunal failed to comply with s.424A of the Act
The second ground of review claims a breach of s.424A of the Migration Act. The Applicant was unable to provide any details of information relied on by the Tribunal as a reason or a part of the reason for affirming the decision under the review that should have been put to him in writing for his comments under the provisions of section 424A of the Act. The Tribunal decision was based on consideration of two matters:
i)The Applicant's evidence at the Tribunal; and
ii)Independent Country Information.
That information does not come within the requirements of sub‑section 424A(1) of the Migration Act. I note that the Tribunal had some items of Independent Country Information translated and read to the Applicant to give him the opportunity to comment at the hearing. There is no breach of s.424A of the Migration Act. Consequently, the Applicant's second ground of review has not been made out.
I would also comment generally that the Tribunal's reasons as set out in its decision record for refusing the application are essentially the same as those given by the Delegate in refusing the initial application for a visa. Consequently, the Applicant at the hearing should have been aware that the key aspects of his claim were an issue and needed to be addressed.
Ground 3 – The Tribunal failed to comply with s.91R(3) of the Act
The Applicant also claims in his third ground that the Tribunal failed to comply with s.91R(3) of the Migration Act. He has not provided any particulars of that alleged breach. There are two aspects of the Applicant's conduct in Australia which were referred to by the Tribunal. The first one relates to his claim to have attended church services in Brisbane when he was living in that city. The Tribunal did not accept that claim.
The Tribunal found that his claims were vague and lacked detail. It said that the Applicant was unable to provide the addresses of the churches or even the suburb where they were situated. Because of the nature of the Applicant's evidence on that issue the Tribunal was not satisfied that the Applicant did attend those church services in Brisbane that he claimed. Consequently, s.91R(3) of the Migration Act does not apply, (See SZJGV v Minister for Immigration & Citizenship[4]).
[4] (2008) 170 FCR 515 at [22]
The other aspect of the Applicant's conduct in Australia to which the Tribunal referred is a negative aspect, or an item of non-conduct. The Tribunal noted that the Applicant moved to Sydney but had not made any contact with Chinese Christians in the suburb where he lives.
The First Respondent, the Minister, submits that in circumstances where an applicant's failure to engage in conduct is divulged as a result of the Tribunal's questioning that failure does not form part of the Applicant's case before the Tribunal and therefore need not be disregarded under s.91R(3) of the Act.
I am referred to the decision of SZLDV v Minister for Immigration & Citizenship[5]. In any event it would appear as a matter of common sense that a failure by a person who claimed to be a Christian to contact other Christians and attend church services can hardly be characterised as conduct engaged in for the purposes of strengthening the person's claim to be a refugee. Consequently I am of the view that s.91R(3) of the Act does not apply.
[5] [2008] FCA 1211 at [17]-[19]
The Applicant's third ground has not been made out.
Conclusion
I am mindful of the fact that the Applicant is not legally represented. He has consulted a lawyer under the RRT Legal Advice Scheme although he claims he did not receive written advice from that lawyer. That may or may not be the case but in any event I am not satisfied that it is a ground for adjournment. The Applicant did not seek an adjournment for that purpose and in any event I am not satisfied that the proceedings today should have been adjourned for that reason.
An independent reading of the Tribunal decision and the other documents in the Court Book does not disclose any other arguable case for jurisdictional error. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub‑section 474(2) of the Migration Act. As a privative clause decision it is not subject to orders in the nature of certiorari or mandamus or other relief and the application should be dismissed.
Costs
On the question of costs the Applicant has been unsuccessful in his claim before the Court and an amount of costs is sought on behalf of the Minister in the sum of $3,500.00. It is appropriate to make an order for costs in favour of the Minister and the sum of $3,500.00 is well within the scale allowed by the Court.
I note that there was an initial directions hearing before me on 20th April 2009; I note that Court Books were prepared and a written outline of submissions was prepared and filed. There has been a Final Hearing before me today. In all of the circumstances I am satisfied that the sum of $3,500.00 is an appropriate figure, if anything it is a comparatively modest sum.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 18 June 2009
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