SZNLJ v Minister for Immigration
[2009] FMCA 606
•26 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 606 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 91R, 424A, 424AA, 425 |
| F Hoffmann-La Roche & Co AG v Secretary of State [1975] AC 295 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NACB v Minister for Immigration [2002] FCAFC 236 Re Minister for Immigration; Durairajasingham (2000) 168 ALR 407 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| Applicant: | SZNLJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 858 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 26 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2009 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 858 of 2009
| SZNLJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of religious and other persecution.
Background facts relating to the applicant's protection visa claims and the Tribunal decision on them are conveniently summarised in the Minister's written submissions filed on 19 June 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 3 through to 15 of those written submissions:
The applicant applied for a protection visa on 20 August 2008 under s.36 of the Migration Act 1958 (Cth) (“the Migration Act”).[1] In his protection visa application the applicant claimed to fear persecution in China because he is a Christian and that he has been involved in ‘anti three gorges dam’ activities.
[1] Court Book (“CB”) at 1-34
On 16 October 2008 a delegate of the Minister refused to grant the applicant a protection visa[2].
[2] CB 43-53
On 19 November 2008 the applicant applied for review of the delegate’s decision in the Tribunal.
The Tribunal hearing
The applicant attended two oral hearings before the Tribunal and gave evidence at both with the assistance of an interpreter.
At the hearings the applicant claimed he had suffered persecution in China by reason of his Christianity. He claimed to have become a Christian in May 2007. He claimed he distributed leaflets and the bible. He says he was arrested, detained and subjected to physical and mental torture as part of a process called “eduction through labour” between 1 November 2007 and 31 December 2007. After this incident he went into hiding then illegally obtained an Australian visa before fleeing China[3].
The applicant claimed to have been involved with residents who were protesting the three gorges dam in Fujian[4].
The applicant also claimed that after he arrived in Australia he attended the Christian Assembly of Sydney and a Christian Church in Auburn and Lidcombe[5].
The applicant claimed that he would be arrested if he returned to China because he took part in the underground movement of Christians and distributed leaflets, and claimed this was illegal[6].
Tribunal’s decision
On 19 March 2009 the Tribunal handed down its decision affirming the delegate’s decision to refuse a protection visa.
The decision essentially turned on an adverse credit finding made against the applicant. Based upon an analysis of the implausibility of the applicant’s evidence regarding how he came to Australia, and his evidence regarding a person called ‘A Long’, the Tribunal firstly found that the applicant was not a credible witness[7].
The Tribunal then considered the applicant’s evidence of attending Christian Churches whilst in Australia, but was not satisfied that his conduct was engaged in otherwise than for the purpose of strengthening his refugee claim and disregarded the conduct (as it was to do required under s.91R(3) of the Migration Act)[8].
Finally, the Tribunal was not satisfied the applicant was in fact a Christian[9]. The Tribunal concluded that based upon the applicant’s overall lack of credibility it was not satisfied that the applicant had suffered past harm as claimed. The Tribunal also found that the applicant did not hold any Christian convictions and that there was no real chance of the applicant being persecuted now or in the foreseeable future[10].
The Tribunal found it was not satisfied the applicant had a well‑founded fear of persecution under the Convention[11].
[3] CB 113-119
[4] CB 114
[5] CB 115-119
[6] CB 115
[7] CB 120
[8] CB 120
[9] CB 120
[10] CB 121
[11] CB 101
The applicant relies upon a show cause application filed on 14 April 2009. There are three grounds in the application which are particularised at length. First, the applicant asserts a failure by the Tribunal to comply with its obligations under s.425 of the Migration Act to give an opportunity to the applicant to give evidence and present arguments arising in relation to the decision under review. Secondly, the applicant asserts that the Tribunal's decision reveals irrationality, illogicality and/or unreasonableness. Thirdly, the applicant asserts a failure by the Tribunal to comply with it obligations under s.424A(1) of the Migration Act.
I have before me as evidence the applicant's affidavit filed on 14 April 2009 and the court book filed on 18 May 2009. Only the Minister took up the opportunity to file written submissions but the applicant made lengthy and detailed oral submissions. In those submissions, the applicant asserted that the Tribunal displayed bias. He supported that contention by detailed disagreement with the Tribunal's reasoning process. However, as I explained to the applicant during the course of argument, even if the applicant's claims before the Tribunal were true and the Tribunal made mistakes in rejecting those claims, that would not establish bias. There is no evidence of the Tribunal's presiding member having a closed mind or even a reasonable apprehension that the presiding member did not bring an unprejudiced mind to the review.
During the course of argument the applicant asserted that he was regularly interrupted by the presiding member at the hearing he attended. There is nothing in the court book to support that assertion. In procedural orders made by me on 5 May 2009 I gave the applicant leave to file and serve a transcript of the Tribunal hearing by 9 June 2009. No transcript has been filed. The applicant explained that it was too expensive for him to arrange a transcript and that may well be so but the fact remains that there is no evidence before the Court to support the assertions of bias made by the applicant from the bar table.
The applicant asserted that he did not have a sufficient opportunity at the hearing conducted by the Tribunal to explain and expand upon his claims and answer questions. The Tribunal's hearing record[12] discloses that the hearing ran for approximately two hours. The Tribunal's decision reproduces the applicant's claims faithfully and in paragraphs 23 to 54 of the decision[13] the Tribunal records at length what occurred at the hearing. I am satisfied, based on that material, that the hearing opportunity afforded the applicant was a real one.
[12] CB 102
[13] CB 113-119
The applicant also dealt at length with what he sees as illogicality or unreasonableness in the Tribunal's reasoning process. He is entitled to disagree with the Tribunal decision. A differently constituted Tribunal might hypothetically have reached a different decision. However, even if the applicant had been able to establish illogicality in the Tribunal's reasoning that would not of itself have established jurisdictional error[14].
[14] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59
In any event, I do not accept that the Tribunal's decision is illogical or unreasonable. The Tribunal made a reasoned assessment that the applicant's claims and evidence and found lack of credibility in them. The adverse credibility findings made by the Tribunal were open to it on the material before it.
The challenge based on s.424A of the Migration Act has no substance. At paragraph 55 of its reasons[15] the Tribunal referred to a 1994 Human Rights Watch Asia publication. It does not appear that that country information figured in the findings and reasons ultimately made by the Tribunal. However, even if that country information was in some way determinative of the outcome, there was no obligation on the Tribunal to disclose that information and invite comment on it pursuant to s.424A because of the operation of s.424A(3)(a) of the Migration Act.
[15] CB 119
I also note that at paragraph 50 of its reasons[16], the Tribunal records that it purported to go through a process of oral disclosure and an invitation to comment pursuant to s.424AA of the Migration Act. It appears to me from my reading of that paragraph that the Tribunal probably exceeded its obligations pursuant to that section. However, if the Tribunal did exceed its obligations, that is not indicative of any error going to jurisdiction. The Tribunal's approach merely enhanced the fairness of the hearing opportunity.
[16] CB 118
The applicant also asserted in his oral submissions that he was disadvantaged in preparing for today's hearing because he had not had the benefit of advice under the Minister's panel advice scheme. The applicant had asked to participate in that scheme at the first court date and the court registry wrote to him and the panel adviser (Mr Jackson) to provide their respective contact details. Counsel for the Minister stated from the bar table, and I accept, that Mr Jackson was sent the court book by the Minister's solicitors. There is a record of a telephone conversation between a registry officer and Mr Jackson on 8 May 2009 when Mr Jackson advised that he had thought himself able to provide advice by 9 June 2009 and that he would send back an “advice given” form to the registry once advice had been given. It does not appear, however, that that form has been returned. The applicant told me from the bar table that, while he had received the letter from the Court concerning Mr Jackson, he did not understand the contents of it and, for reasons best known to himself, he did not ask his migration agent or anyone else to explain the letter to him. In my view, while it is unfortunate that the applicant has apparently not received advice pursuant to the scheme, the Court and the Minister's solicitors have done what they could to facilitate the provision of advice and the non receipt of advice is not a reason to delay a decision in this matter.
The Minister's written submissions deal further with the grounds advanced by the applicant. I agree with those submissions and adopt them, with minor amendments, for the purposes of this judgment. Specifically, I adopt paragraph 21 through to paragraph 51 of the submissions:
Ground 1
In ground 1 the applicant refers to three findings. They are:
a)The Tribunal’s opinion in paragraph [58] that the applicant gave no plausible explanation as to why A Long travelled from China Melbourne and dropped him in Chinatown in Sydney without directions;
b)The Tribunal’s findings in paragraph [59] that (i) the applicant lacked knowledge and had a very poor understanding of his church (ii) that it was not prepared to give the applicant the benefit of the doubt about his lack of knowledge of his lack of knowledge of the Christian Assembly Church of Sydney and (iii) that his attendance at the Christian churches since his arrival was not done so other than for the purpose of strengthening his claims to be a refugee; and
c)The Tribunal’s findings in paragraph [60] that the applicant was not a Christian.
The applicant asserts these matters are “issues” that he should have been given an opportunity to make submissions about in accordance with the obligation in s.425: see SZBEL v Minister for Immigration (2006) 228 CLR 152 (“SZBEL”).
This argument is misconceived.
First, the paragraphs the applicant has referred contain the Tribunal’s mental processes and conclusions reached on the applicant’s evidence, credibility and claims. The High Court made it clear in SZBEL at [48] that the Tribunal had no obligation to given a running commentary on what it thinks, its mental processes or provisional views about the evidence that is given by the applicant: see F Hoffmann-La Roche & Co AG v Secretary of State [1975] AC 295.
Secondly, and in any event, a fair reading of the Tribunal’s decision[17] makes clear that each of the issues the subject of those paragraphs were discussed by the applicant and the Tribunal member at the hearings at length.
[17] The Tribunal’s decision is the only evidence of what happened at the hearings in the Tribunal. There is no transcript of the hearing.
In paragraph [58] the Tribunal is giving its conclusions on the credit of the applicant based upon an analysis of evidence given about a person known as ‘A Long’. The Tribunal founds this evidence is not plausible. This finding was open on the evidence. It is clear that this evidence and the concerns the Tribunal member had with this evidence was discussed with the applicant: see paragraphs [26] and [27].
In paragraph [59] the Tribunal is giving its reasons and conclusions for finding that it was not satisfied that the applicant engaged in conduct in Australia otherwise than of for the purpose of strengthening his refugee claims. This finding was open on the evidence. At paragraph [50] of its decision the Tribunal discusses its concerns about the applicant’s evidence of attending Christian Churches whilst in Australia and the Tribunal member’s concern that the applicant may have been put in touch with the Church (in Sydney) for the purposes of a migration outcome.
In paragraph [60] the Tribunal is giving its reasons and conclusions for its finding that the applicant was not a Christian. This issue was central the applicant’s refugee claim and was obviously discussed at length with the applicant at the hearings. It is untenable that the applicant would not have been aware in the circumstances that the Tribunal would have to decide whether he was a Christian.
Ground 2
In Ground 2 the applicant asserts the Tribunal decision was irrational, illogical and unreasonable. There are three particulars in support of this ground. Each are dealt with below.
Particular (a)
In particular (a) the applicant challenges the finding of the Tribunal in paragraph [58] (discussed above) regarding the evidence concerning ‘A Long’. The Tribunal finding that the evidence regarding ‘A Long’ was not plausible was a finding open to the Tribunal to make. It was a finding of fact based on the evidence of the applicant given to the Tribunal member: see paragraphs [26] and [27].
If, by this particular, the applicant seeks merits review of the finding in paragraph [58] then this is not permissible. Further, a mere assertion itself that a finding is irrational or illogical is not a basis for establishing jurisdictional error: see NACB v Minister for Immigration [2002] FCAFC 236.
Particular (b)
In particular (b) the applicant appears to make four challenges to the factual finding in paragraph [59] of the Tribunal’s decision about the applicant’s lack of knowledge of the Christian Assembly of Sydney. This is impermissible. This finding was a factual finding that was open to the Tribunal to make on the evidence. The four challenges are dealt with below.
i) First challenge under particular (b)
The applicant refers to evidence (country information and internet print outs) that were not before the Tribunal regarding the Christian Assembly of Sydney and asserts the Tribunal was confused about what the Christian Assembly of Sydney was. The first respondent makes two submissions about this challenge.
First, it is not permissible for this Court to undertake a merits review of factual findings made by the Tribunal regarding the Christian Assembly of Sydney. The evidence referred to in the application in support of this argument was not before the Tribunal member when he was determining the claims of the applicant. Merits review is not permitted in judicial review applications under the Act: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259.
Secondly, a fair reading of the decision makes clear there was no confusion on the part of the Tribunal member that the applicant attended the Christian Assembly Church of Sydney. The applicant specifically told the Tribunal Member he was not a “shouter”: see paragraph [45] of the decision.
The first challenge under particular must be rejected.
ii) Second challenge under particular (b)
The applicant asserts that it was incorrect for the Tribunal to have used the applicant’s lack of belief about the Christian Assembly of Sydney as a main reason for rejecting my religious belief and activities in China. This argument misconceives the finding made by the Tribunal in paragraph [59] for the following reason.
In paragraph [59] the Tribunal found that it was not satisfied the applicant had attended the Christian Assembly of Sydney Church (and other Christian Churches in Sydney) otherwise than for the purpose of strengthening his refugee claims. The Tribunal was obliged to assess the applicant’s conduct in Australia by reason of s.91R(3) of the Migration Act. The Tribunal did not conclude in paragraph [59] (or anywhere else for that matter) that the main reason for rejecting the applicant’s religious beliefs and activities in China was because of the applicant’s lack of knowledge of the Christian Assembly of Sydney. The applicant has misunderstood the Tribunal’s findings.
The Tribunal rejected the applicant’s religious beliefs and activities in China in paragraph [60] based on the finding that the applicant was not a credible witness.
iii) Third challenge under particular (b)
The applicant also asserts the Tribunal’s decision was irrational, illogical and unreasonable because it failed to consider the evidence regarding Brother Ng of the Christian Assembly of Sydney.
This is not a basis for asserting jurisdictional error. In any event, in paragraphs [49] to [54] of the Tribunal decision the Tribunal member clearly sets out the evidence regarding Mr Ng as provided by the applicant, and the concerns he had with that evidence. In paragraph [59] the Tribunal considers that evidence when it was determining whether the applicant’s evidence of conduct whilst in Australia should be excluded under s.91R(3) of the Migration Act. There was nothing erroneous about finding.
iv) Fourth challenge under particular (b)
The applicant asserts that the Tribunal misunderstood his evidence about “priests” in the Christian Assembly of Sydney in paragraph [54] of its decision. This argument has no basis. Paragraph [54] is a summary of the evidence the applicant gave to the Tribunal at the hearings. This is the only evidence of what was said by the applicant at the Tribunal. It clearly summarises that the applicant told the Tribunal he thought that Mr Ng was a “priest”: (“…at the hearing he had referred to Mr Ng as a priest”)[18]. There was no misunderstanding of the applicant’s evidence on the part of the Tribunal.
Particular (c)
Particular (c) appears to challenge the finding that the applicant was not a Christian in paragraph [60] of its decision. For the reasons given above, this finding of fact was open to the Tribunal to make. The finding was based on a credibility finding the Tribunal made against the applicant. There was nothing unreasonable about that finding. Such findings are a matter for the Tribunal par excellence: Re Minister for Immigration; Durairajasingham (2000) 168 ALR 407. This Court does not have the jurisdiction to allow challenges to factual findings made by the Tribunal.
Ground 3
In ground 3 the applicant asserts the Tribunal breached s.424A(1) of the Migration Act in that it failed to give the applicant an opportunity to provide written comments on the country information outlined in paragraph [55] of the Tribunal decision.
This ground must be rejected. Section 424A(3) clearly provides that country information is an exception to any obligation the Tribunal has under s.424A(1). For this reason the Tribunal had no obligation under s.424A(1) to provide the country information in paragraph [55] to the applicant for comment.
[18] CB 118 [54]
I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed and I so order.
Costs should follow the event in this case. The Minister seeks an order for costs fixed in the sum of $5,200. The applicant expressed this disagreement with my decision and indicated his intention to appeal. That is of course his right. I am satisfied that costs of not less than $5,200 have been reasonably and properly incurred on behalf of the Minister when assessed on a party-party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 7 July 2009