SZNLG v Minister for Immigration - [2009] FMCA 927

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLG & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 927

MIGRATION – Review of RRT decision – applicants citizens of China – whether claim that Tribunal acted unreasonably merely reflective of disagreement with its decision – whether findings of Tribunal indicated bias – s.424A – claim that certain documents and conclusions should have been put to the applicant – where applicant essentially seeking merits review.

Migration Act 1958 (Cth), ss.91R(3), 420, 424A

Minister for Immigration v Eshetu [1999] HCA 21
Re Minister for Immigraton; Ex parte Applicant S154/2002 [2003] HCA 60
SZKON v Minister for Immigration (No.2) [2008] FCA 204
SZBYR v Minister for Immigration (2007) 235 ALR 609
SZRUD v Minister for Immigration [2006] FCA 1555
Minister for Immigration v Lee [2007] FCA 138
SZHVL v Minister for Immigration [2008] FCA 356
Seyfarth v Minister for Immigration [2004] FCA 1713
MIMIA v SGLB (2004) 207 ALR 12

First Applicant:

SZNLG

Second Applicant:

SZNLH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 850 of 2009

Judgment of:

Raphael FM

Hearing date:

10 September 2009

Date of Last Submission:

10 September 2009

Delivered at:

Sydney

Delivered on:

10 September 2009

REPRESENTATION

For the Applicant:

In person

Counsel for the First Respondent:

Mr H Bevan

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 850 of 2009

SZNLG

First Applicant

SZNLH

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China as is his son, the second applicant, who had no claims of his own to be a refugee. They arrived in Australia on 21 October 2007 and on 6 August 2008 applied for protection (Class XA) visas. They had arrived on visas permitting the second applicant to study in Australia and the first applicant, as his father, to accompany him. On 26 September 2008 a delegate of the Minister refused to grant a protection visa and on 27 October 2008 the applicants applied for review of that decision from the Refugee Review Tribunal.
The Tribunal arranged a hearing which the first applicant attended and to which he brought a witness. Following the hearing, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act1958 (Cth) (the “Act”) on 17 February 2009. The applicant responded to that letter on 5 March. On 13 March the Tribunal determined to affirm the decision not to grant protection visas. In these reasons I shall refer to the first applicant as “the applicant”.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations arose out of his adherence to the Christian religion and his practice of it in China in a local church, which he claimed was described by the Chinese as a “Shouters” church. He told how he had been born and brought up in a Christian family and had been baptised on 5 April 1991. He told how, in May 2003, he had attended a church training class but some police officers from the PSB found out about it and he was arrested and taken to the Fuqing City Public Security Bureau.
He said he was sent to a detention centre and was detained for three months, where his hand was broken and he was refused medical treatment. He said that he had applied for a passport in 2004. The applicant continued to attend church gatherings but on 20 July 2006 he was studying the Bible at home with five colleagues when policemen burst into the home and took everybody away, including religious material. The applicant was sentenced to six months in the Fuqing Re-education through Labour camp where he claimed he was mistreated, brainwashed and forced to write letters of remorse.
He was told that he could obtain entry into Australia if he sent his son over here to study. He obtained a student visa for his son and an accompanying parent visa for himself and came to Australia. Whilst here, he joined a church known as the “Local Church” in Sydney, where he had become a regular participant and a provider of community service. Members of that church provided written evidence that the applicant was a regular attender of bible classes and was in charge of Wednesday and Saturday gatherings.
The Tribunal questioned the applicant on his claims. It asked him for some details about the police station to which he had been taken after his first arrest and where the detention centre was to which he had been taken. The Tribunal considered the responses given by the applicant to those questions vague. He did not know the exact location of these places. He was unable to tell the Tribunal what he did during the day at the detention centres:
“The applicant claimed he was sent to a Reform through Labour centre in or near the town of Chuan Xia but he was not able to tell me the exact name of the centre or its location. He claimed he worked in a cement processing factory during his time in the camp. The centre provided clothes which he described, but he could give very little detail about his time in the centre. He was released after six months and returned to his home on the public bus.” [52] [CB 159]
The Tribunal questioned the applicant about his obtaining of a passport and a visa to Australia and queried why he had waited so long before applying for protection if he knew that the visa that he had obtained would expire eventually and that he would be required to go back to China unless he was granted asylum. The Tribunal also discussed with the applicant concerns it had arising from the application which had been made by him for a student accompanying visa. Some of the documents which were contained within this application seemed to indicate that the applicant was using his bank account at a time when he claimed to have been in detention.
The applicant produced a witness who gave oral evidence to the Tribunal. He told the Tribunal that he had been in Australia for over 10 years and that he had known the applicant for about a year. He said that he had telephoned some members of the applicant’s village, who were also members of the Local Church, and had spoken to them about the applicant.
In the s.424A letter written by the Tribunal to the applicant [CB 141] it deals with the concerns the Tribunal had about a certificate which was submitted with the application for a visa on 26 April 2007, stating that he had no record of committing criminal offences, which was not consistent with having been charged with an offence and sentenced to re-education through labour shortly beforehand. The letter also deals with the concerns the Tribunal had about the applicant utilising his own bank account whilst allegedly in detention. The applicant responded on 5 March 2007 [CB 143] to the effect that he knew nothing about the certificate; that was done by his agent and whilst he was in detention his wife used his bank account. But the Tribunal noted that his wife had her own account at the time.
In its “Findings and Reasons” the Tribunal set out the evidence that it had heard and its conclusions. In short, it did not find the applicant a credible witness because it did not accept his explanations for the matters of concern to it that had been pointed out to him. In particular his failure to be able to describe where the detention centres were or what he did there and the use of the bank account whilst he claimed he was in detention.
The Tribunal also dealt with the evidence of the applicant’s witnesses. In regard to the statements from people in China the Tribunal noted that one was said to be a pastor and the other a member of a house church in Fuqing but the authors were not available for questioning and the contents of the letters could not be verified so it gave them no weight [93] [CB 166]. In regard to the evidence of the witness who came to the Tribunal, the Tribunal did not accept that he would have been able after 10 years absence in China to telephone people in a town with which he claimed no connection and ask them questions about a local church. It took the view that the evidence given by the witness was untruthful and that his motives were to help strengthen the applicant’s case.
The Tribunal considered the applicant’s activities for the local church in Australia and whilst accepting that he had gone to church and was active in it, it was not satisfied that he had engaged in those activities otherwise than for the purpose of strengthening his claim to be a refugee and therefore disregarded them pursuant to s.91R(3) of the Act.
On 9 April 2009 the applicant filed an application with this Court seeking review of the Tribunal’s decision. The first ground of application alleged an error of law on the part of the Tribunal by failing to consider the applicant’s evidence. The particulars are lengthy and they go to matters discussed with the Tribunal hearing. The applicant essentially says that because the Tribunal did not accept his statement it acted illogically. As Gleeson CJ and McHugh J said in Minister for Immigration v Eshetu [1999] HCA 21 at [40]:
“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as illogical or unreasonable or even so unreasonable that no reasonable person could adopt it. If these are merely emphatic ways of saying that the reasoning is wrong then they have no particular legal consequence.”
To my mind this is exactly the situation with which I am currently faced. The applicant very strongly objects to the findings made by the Tribunal but they are based upon available evidence, namely, the applicant’s responses, the Tribunal’s assessment of his witnesses and independent country information.
In the second ground of application the applicant says that the Tribunal made an error of law by misstating his oral evidence given to it at the hearing. It contrasts the account of the evidence at [47] and [48] and the Tribunal’s decision on that evidence at [89] of the Tribunal’s decision. I think if one reads the extracted sections as a whole and without a mind attuned to error one would find that the decision statement is a passable précis of the evidence statements. The applicant argues that he was not vague and uncertain of the details surrounding the circumstances of his arrest but he has not provided a transcript or any other evidence to show that this was not the case.
The applicant complains that the Tribunal failed to give him a genuine chance to present his arguments relating to the issues arising in relation to the decision under review. He says that he thought the Tribunal had already obtained sufficient information about his detention so he had no need to provide any further information. But “the responsibility lies upon the applicant to present his case and it is not for the Tribunal to prompt or stimulate an elaboration upon which an appellant does not choose to embark”; re Minister for Immigration; Ex parte Applicant S154/2002 [2003] HCA 60, discussed by Graham J in SZKON v Minister for Immigration (No. 2) [2008] FCA 204 at [12].
The third matter raised by the applicant was that the findings indicated a reasonable apprehension of bias. He then refers to an extract from [90] of the Tribunal’s decision where the Tribunal indicated that it felt that the obtaining by the applicant of a passport in 2004 indicated that he was of no adverse interest to the Chinese authorities. This does not reveal to me any indication of bias. It is a conclusion drawn by the Tribunal from the evidence. The applicant says it was not logical or reasonable but he says that for reasons which relate entirely to his history, that is, the evidence put forward to the Tribunal. The claim is really seeking an indication from the Court that the Tribunal came to a wrong conclusion on that evidence. Even if the Court was prepared to do this, the error of the Tribunal would be one within jurisdiction.
There is a similar argument to be made about misstatement of the applicant’s oral evidence in the fourth ground where the applicant compares the decision record at [91] with the evidence record at [51] and [52]. If the applicant wished to impugn the Tribunal’s recollection of the oral evidence given, he should have provided the Court with the transcript.
The fifth ground is a complaint that the Tribunal failed to comply with its obligations under s.424A. The applicant extracts [92], [93] and [100] of the Tribunal’s decision record, and then says:
“While the Tribunal has considered the particulars of the information which have been obtained from “Fuqing Labour through Labour Administration Committee Re-Education through Labour Decision” from two documentary evidences from two Christians of the local church in China, and from witnesses in Australia, as the reason or part of the reason for affirming the decision that is under review, there is obviously no evidence that the Tribunal has … given to me in the way that the Tribunal considers appropriate in the circumstances, particulars of any abovementioned information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review, and…ensured, as far as it is reasonably practicable, and I understand why it is relevant to the review and … invited me to comment upon it.”
The respondent submits that this ground fails because the documents do not constitute “information” for the purposes of s.424A(1); SZBYR v Minister for Immigration (2007) 235 ALR 609 (“SZBYR”); secondly, the documents fall within the exception in s.424A(3)(b), being documents submitted by the applicant to the Minister in support of his application; and thirdly, that, in any event, s.424A does not oblige the Tribunal to put its conclusions about the documents to the applicant for comment. Having heard the applicant’s oral submissions to me, I think this was the major complaint that he was making. SZBYR is authority for the fact that this is not part of the Tribunal’s obligations; SZBYR at [18].
The applicant made a lengthy submission to me at the hearing today. He repeated his claims about illogicality, which I have already dealt with. He asked a number of rhetorical questions which went directly to the evidence and would thus strengthen the view that I have taken that this is merely a strong disagreement with the findings. He claimed that there were no reasons given as to why the Tribunal concluded that he was not a member of the local church in China but that cannot stand a reading of the Tribunal’s grounds for decision. He felt that he should have been sent a letter by the Tribunal, telling him why it proposed to find against him. But as Spender J said in SZRUD v Minister for Immigration [2006] FCA 1555 at [15]:
“Finally, there is no obligation in the Tribunal to give advance notice of its proposed adverse findings. The Tribunal is obliged to hear the applicant and the case he wishes to present. Its obligations to inform the applicant concerning matters are exhaustively set out in s.424A of the Migration Act.”
The applicant argued that the Tribunal had made a decision on its own subjective reasoning, which was not based on fairness. He argued that the Tribunal had failed in its obligations under s.420 of the Act to carry out its functions in a manner that was fair, just, economical, informal and quick, and in this regard placed emphasis on the requirement to be fair. But s.420 has been authoritatively determined to be a facultative section; Eshetu supra at [49], and so this will not avail.
Finally, the applicant made a late plea that the Tribunal should have telephoned the witnesses whose evidence it was not prepared to accept. This is a claim that the Tribunal should have made inquiries but it does not pass the test set out in Minister for Immigration v Lee [2007] FCA 138, which would only make this an obligation where the information is on a critical issue and is readily available and centrally relevant. Otherwise, there is no general duty to inquire; SZHVL v Minister for Immigration [2008] FCA 356; Seyfarth v Minister for Immigration [2004] FCA 1713, MIMIA v SGLB (2004) 207 ALR 12.
In these circumstances, I am unable to find grounds upon which the Tribunal could be said to have fallen into jurisdictional error in the manner in which it reached this particular decision. The application is dismissed. The applicant must pay the respondent’s costs, which I assess in the sum in $5,000.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 18 September 2009