SZNLW v Minister for Immigration

Case •

[2009] FMCA 814

•

26 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLW v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 814
MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal considered claims and integers of claims – Tribunal considered evidence and information – findings open to Tribunal – applicant seeking merits review – no bias – Tribunal complied with s.425 – Tribunal complied with s.424A – no breach of s.424 – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 441A, 441C, 424, 424A,424B, 425

Migration Legislation Amendment Act (No.1) 2009 (Cth)

Migration Regulations 1994 (Cth) reg.4.35
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51
SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Applicant: SZNLW
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 882 of 2009
Judgment of: Nicholls FM
Hearing date: 14 July 2009
Date of Last Submission: 14 July 2009
Delivered at: Sydney
Delivered on: 26 August 2009

REPRESENTATION

Appearing for the Applicant: In person
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr J Smith
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The application made on 16 April 2009, and amended on 12 June 2009, is dismissed.

  2. The first respondent’s application for costs be heard on 9 September 2009 at 9.30am at Court 7A at John Maddison Tower.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 882 of 2009

SZNLW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made on 16 April 2009, and amended on 12 June 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 10 December 2008, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

  1. The applicant is a citizen of the People’s Republic of China (“China”), who arrived in Australia on 10 November 2007 and applied for a protection visa on 19 December 2007. (See Court Book – “CB”, at CB 1 to CB 62.)

  2. The applicant was represented by a registered migration agent, both during the processing of the protection visa application and before the Tribunal. (See CB 26 and CB 130.)

Claims to protection

  1. The applicant’s claims to protection were initially set out in a statement (reproduced at CB 27 to CB 33).

  2. The applicant claimed to be a Christian in China, who was part of, and attended, a local family church which was not registered by, and not recognised by, the Chinese authorities (the “Local Church”). She claimed that in May 2005, while attending a family church gathering, security officers came into the hall where she and others were gathered and made allegations that they were conducting illegal religious activities. The applicant and the others present were taken by the local Public Security Bureau (“PSB”) and were detained for fifteen days (CB 31). She claimed that she was beaten and mistreated, and that she had to pay a fine before she was released. She was warned that if she was caught attending illegal family church activities again, she would face more severe punishment. Following her release, she was often subjected to questioning by PSB officers (CB 32).

  3. One of the applicant’s daughters was granted a student visa and came to Australia in May 2007. The applicant applied for a guardian visa and subsequently came to Australia in November 2007 to look after her daughter, and also to: “break away from the religious persecution by the Chinese Communist regime” (CB 33).

  4. The applicant claimed that if she were to return to China, she would continue her activities with the “underground” church and would be subject to serious persecutory harm because of this.

  5. The applicant provided a number of documents in support of her claims (CB 42 to CB 48).

The delegate

  1. By letter dated 25 March 2008 the Minister’s delegate wrote to the applicant’s adviser (the migration agent), who was also authorised to receive communications in relation to the application, setting out concerns in relation to the application. (See CB 69 to CB 70.)

  2. These concerns included that:

    1)The claims made by the applicant were “very similar, and in some respects identical” to the claims of a large number of other applicants – applicants who were clients of the same agent retained by the applicant.

    2)There was information from the Australian Department of Foreign Affairs and Trade (“DFAT”), which was to the effect that it was unlikely that “so many people” would experience “similar patterns of detention and release” as that stated by the applicant, and that this cast doubt on the credibility of her claims.

    3)The photographs submitted by the applicant of church gatherings in China appeared to depict large gatherings and were not consistent with the applicant’s claims.

    4)The applicant had submitted “original detention and release documents” in support of her claims, and these documents had been referred to the “Department’s Document Examination Unit for analysis”, which found that the documents contained certain features that led the delegate to not accept the authenticity of these documents.

    5)A search of available country information failed to find any record of the arrest or detention of Christians in the applicant’s province in recent years.

    6)In a telephone conversation between the delegate and the applicant on 3 March 2008, the applicant repeatedly advised that she was “detained by the police in May 2003, rather than 2005 as stated in her protection visa application.”

    7)There were other inconsistencies in her claims, which the delegate said cast doubts on the genuineness of her claim.

  3. The letter also sought clarification as to the applicant’s address.

  4. The applicant submitted a response and supporting documents. (See CB 71, CB 74 to CB 108.)

  5. Based largely on the matters noted in the delegate’s letter involving the “serious concerns about the credibility of the applicant and the veracity of the claims that she has made” (CB 124.8), the delegate expressed some doubts as to whether the applicant was a Christian, and whether she was actually a member of the Local Church. The delegate found that the applicant’s claims “in relation to persecution and detention on the basis of her religious practices [were] not credible.” Those claims were not accepted. (See CB 127.)

  6. Ultimately, the delegate refused the application for a protection visa (CB 112 to CB 128) and notified the applicant of the refusal. (See CB 110.)

The Tribunal

  1. The applicant applied for review by the Tribunal on 23 May 2008. (See CB 129 to CB 132.) The same migration agent continued to represent the applicant before the Tribunal (CB 130). The applicant made written submissions to the Tribunal, which were received on 23 May 2008 (CB 153 to CB 199), addressing the delegate’s findings and providing information in support of her claims.

  2. Relevantly, the applicant also provided a statement dated 12 August 2008 from a person who claimed to be a “Mandarin interpreter”, and who said that he had assisted the applicant in the preparation of her statement made in support of her application for a protection visa. He claimed to have incorrectly translated a particular paragraph in the applicant’s statement (CB 219). This person appears to be the registered migration agent who represented the applicant (CB 26 and CB 130).

  3. The applicant ultimately appeared at a hearing before the Tribunal on 13 August 2008 (CB 217). The applicant’s representative also attended, as did a witness who gave evidence in support of her. The Tribunal’s account of what occurred at the hearing is set out in its decision record. (See [32] to [69] at CB 269 to CB 276.)

  4. Following the hearing, by letter dated 12 November 2008, the Tribunal invited the applicant to comment on, or respond to, certain information that it considered would be the reason, or part of the reason, for affirming the decision under review (CB 252 to CB 255).

  5. The information raised by the Tribunal for comment was as follows:

    1)Inconsistencies in the applicant’s statements made to the delegate at the interview, and statements made to the Tribunal at the hearing, and in the agent’s statement, as to the preparation of the statement in support of her application for a protection visa.

    2)Correspondence from the Minister’s Department to the applicant, stating that the applicant’s migration agent represented “90 other applicants” who had made similar factual claims as to arrest and detention in China.

    3)The Tribunal noted that this could lead it to reject the factual basis of the applicant’s claims that she had been detained and mistreated by the authorities in China.

    4)The documents provided by the applicant, which she said had been provided to her by the local PSB in China, were the subject of a report. (The reference by the Tribunal in its letter is to “Australian Department of Foreign Affairs and Trade”, but in context, this appears to be a mistaken reference to the first respondent’s Department.) This report indicated that the documents had not been produced by the PSB, but had been “produced by desktop methods such as laser printing or photo copying.”

    5)Inconsistencies in the applicant’s various statements as to when she had been arrested and detained, which it noted could have led it to not accept any of her claims of detention, torture, or having suffered persecution or serious harm in this way.

    6)Information that she had provided indicated that she had departed China legally using a passport bearing her personal details, and that in light of information from DFAT, a person of interest to the Chinese authorities would likely be denied a passport, and would not be allowed to exit China.

    7)A range of independent sources concerning information about the registration by local authorities of Local Churches in some areas in the applicant’s home province, and other country information from a wide range of sources, which did not support the applicant’s claims of arrests occurring in Fujian province during those periods as claimed.

    8)Evidence provided by the applicant’s witness at the hearing, a witness who was an elder and a member of the Local Church in China (the same Local Church in China as the applicant), who stated that he had returned to the relevant township frequently, and that while he had been arrested in 2005, and had been released and warned, he subsequently was able to return to his home province (the same province as the applicant), even after having been found by the authorities to have “engaged in ‘illegal religious activities’”, and to have had no difficulty in obtaining a visa.

  6. The applicant was asked to comment on inconsistent information that she had provided about medical treatment which she claimed to have received.

  7. The applicant replied by letter received by the Tribunal on 19 November 2008 (CB 256 to CB 259).

The Tribunal’s Findings

  1. The Tribunal found that the applicant was not a “reliable witness” because of inconsistencies in some of her factual statements and in her explanations for those inconsistencies ([82] at 285).

  2. Because of the finding that she was not a reliable witness, and because it gave “little weight” to documentation that she provided in support, the Tribunal also rejected her claims to have been arrested and detained for fifteen days in May 2005. (These were the documents that were the subject of examination by the first respondent’s Department’s “Document Examination Unit”, with reference to [83] at CB 285.)

  3. The Tribunal also rejected the applicant’s response in relation to concerns about some of the documents that she had provided in support of the claim to have been physically injured as a result of her claimed detention. The Tribunal specifically found ([84] at CB 286):

    “The inconsistencies in the two answers are such that it leads the Tribunal to conclude that the applicant has been less than truthful in giving her evidence.”

  4. Further, the Tribunal rejected the applicant’s claim that she had been detained in 2003, and noted that the applicant’s statement that she had been “‘held in a labour camp for 12 months’” had been “mistakenly included” ([85] at CB 284).

  5. In all, the Tribunal found that: “the applicant was not arrested and detained … and that she did not suffer any abuse either physical or mental as claimed” ([84] to [85] at CB 285 to 286).

  6. The Tribunal also found the applicant not to be a credible witness in relation to her explanations, which it found to be implausible, as to the similarity between her claims, and claims made by a: “large number of other applications lodged by her representative in the pattern of detention and release claimed” ([86] at CB 286).

  7. The Tribunal considered the applicant’s evidence of her religious beliefs in the context of her claimed involvement with the Local Church in China. While the Tribunal accepted that the applicant may be a Christian, and may indeed have attended gatherings “from time to time”, it rejected her claims to have been “actively involved with spreading the word over a lengthy period of time.” It found that she was “not of sufficient profile to be of interest to the authorities.” The Tribunal relied on the evidence that the applicant gave at the hearing and relevant country information available to it. (See [87] to [93] at CB 286 to CB 288.)

  8. The Tribunal also found that the applicant’s “new evidence” raised by her at the hearing (concerning the demolition of a house in her village that had been built for gatherings) to be “evasive and vague and overall implausible”. Given that it had found that she was not an actively involved Christian in China as she had claimed, and in light of the country information available to it, the Tribunal found that ([95] at CB 288):

    “… a person who may have from time to time attended a local church gathering is not of sufficient profile to be of interest to the authorities and in so finding takes into account country information that Fujian and Guangdong have the most liberal policy on religion in China especially on Christianity. There is no independent evidence of persecutory treatment of people who may attend a gathering once in a while.”

  9. The Tribunal also considered the applicant’s claim to have been involved with, and to have participated in, “local family church” gatherings in Australia since her arrival. It accepted her evidence, and that of her witness in this regard. However, the Tribunal found that it could not be satisfied that this conduct had been engaged in other than for the purpose of strengthening her claim to be a refugee. It therefore disregarded this conduct pursuant to s.91R(3) of the Act ([96] at CB 288).

  10. The Tribunal also relied on independent information available to it as to the difficulties in obtaining passports in, and then exiting from, China. It found that the applicant was not of adverse interest to the authorities in China, as claimed, given the ease with which she obtained a passport and departed China ([97] to [101] at CB 289).

  11. In all, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations, and it therefore affirmed the decision under review.

Application to the Court

  1. In her application to the Court the applicant sets out the following grounds:

    1. Jurisdictional error has been made by the RRT as failed to comply with the Migration Act, and the finding and decision only based upon information obtained by the Tribunal from departmental records.

    2. [I]t is unfair the reason for the decision made by the Tribunal was about the applicant’s migration agent’s poor credibility, which was imputed to the Applicant, it means the Applicant was told by the Tribunal that ‘the application was one of many making very similar claims, and the claims are very similar to a large number of other applications lodged by her representative in the pattern of detention and release claimed.’

    3. The reason for affirming the decision under Review was lack of credible evidence given by the Applicant, because of the finding that the detention proof and medical document were not genuine, which is not giving clear particulars to the applicant of information that would be the reason for making [the] decision.”

  2. The applicant appeared in person at the first Court date of this matter on 6 May 2009. She was assisted by an interpreter in the Mandarin language.

  3. It was noted that the applicant’s residential address was in Melbourne. The applicant was given the option of having her matter transferred to be heard before a Federal Magistrate in Melbourne. However, she insisted on pressing her application in Sydney and indicated, amongst other things, that there was assistance available to her in Sydney.

Hearing Before the Court

  1. Ultimately, the matter came on for hearing on 14 July 2009. The applicant appeared in person and was again assisted by an interpreter in the Mandarin language. She was accompanied by a friend who provided support to her. The Court adjourned the hearing for short periods on a number of occasions to enable the applicant to confer with her friend. Mr J Smith of Counsel appeared for the first respondent.

  2. Previously, on 12 June 2009, the applicant had filed in the Court’s registry a document headed: “Amended Application Under Migration Act”, which also attached a document headed: “TRANSCRIPT includes bible references”, purporting to be a transcript of the hearing before the Tribunal. Also filed on that day was the applicant’s affidavit of 12 June 2009, in which the applicant stated:

    “I contacted my panel adviser ... but I didn’t receive an amended application until 12 June, 2009.”

  3. The applicant confirmed that she wanted the Court to consider the grounds in the amended application. No objection was taken by Mr Smith, even though the Minister did not appear to have been formally served with this document.

  4. The applicant also wanted the Court to take into account the purported transcript attached to the amended application. Although the applicant had the benefit of legal advice from a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”, the transcript was not put before the Court in any appropriate evidentiary context. For example, there is no evidence as to the provenance of this document. Mr Smith took no objection to the Court considering the transcript, but did object to those parts of the transcript purporting to be quotes from the Bible, which appeared in bold type throughout the transcript.

  5. I agreed with Mr Smith that those parts of the transcript should not be taken into evidence, given the lack of any evidence as to how the transcript was created. Further, the heading on the document: “TRANSCRIPT includes bible references”, suggests that the Bible references have been added to the transcript. This is consistent with the appearance of those references in a bolder typeface than the rest of the document. (In any event, as can be seen below, the references do not assist the applicant.)

Amended Application

  1. The grounds of the amended application are as follows:

    1. That the RRT failed to comply with s425 of the Migration Act

    Particulars

    The RRT did not give proper, genuine and realistic consideration to the applicant’s evidence as it did not assess whether the applicant’s extensive references to the Bible were accurate.

    2. That the RRT failed to have regard to relevant considerations

    Particulars

    The RRT failed to have regard to the fact that the applicant accurately quoted extensively from the Bible when giving her evidence when it based its decision upon the extent of and the degree of, the applicant’s knowledge of Christianity.”

  2. The applicant commenced her submissions by seeking to explain that she was nervous when she received a telephone call from the Minister’s delegate and that this explained the inconsistency, which was subsequently found in relation to her claimed detention in China. I explained to the applicant that she had asked the Court to consider the grounds in the amended application and the applicant proceeded to address the issue arising from those grounds.

  3. In any event, the issue of the inconsistent statements made by the applicant (in part, arising from what she told the delegate by telephone in relation to her claimed detention in May 2005) was addressed by the Tribunal at the hearing, and was subsequently raised with the applicant by way of its letter of 12 November 2008. (See, particularly [57] at CB 274 and CB 251.)

  4. On what is before the Court, the applicant was given the opportunity to explain this, and other inconsistencies, to the Tribunal. In the circumstances, it was open to the Tribunal to find that the applicant had given inconsistent dates, in relation to the detention in China, and it was open to the Tribunal to find that this reflected adversely as to the applicant’s credit.

  5. In relation to the grounds in the amended application, the applicant submitted that even though the Tribunal said that she quoted extensively from the Bible, the Tribunal did not think that she was a genuine Christian. The applicant pressed her belief in God and the Church, and stated that Jesus was her “life”. She submitted that she told the Tribunal how she had been subjected to persecution in China, and that there was “lots of persecution” in China of “genuine Christians”. She claimed that the Tribunal was biased, and that she knew of many cases of other applicants who had the “same” case as her, and the same material, whose applications were considered by different members, and who have been granted protection.

  6. The applicant subsequently submitted that the Tribunal did not believe that she could be so knowledgeable about the scripture and that, despite the fact that she only had received a limited education, she did have a depth of knowledge of the Bible. She complained that the Tribunal thought that she was simply able to recite passages from the Bible, but did not understand the Bible. She posed the question that: if she were simply reciting these passages by heart, how could it be that at the hearing her quotes were “relevant” to the issues being raised by the Tribunal?

  7. Mr Smith submitted that while ground one in the amended application asserts a failure to comply with s.425 of the Act, both the first and second grounds are actually complaints that the Tribunal did not take into consideration the applicant’s ability to quote passages from the Bible on a number of occasions at the hearing. The important element of the complaint being that the applicant’s extensive quotations from the Bible “were accurate” and that the Tribunal, in essence, did not accept this as sufficient to find positively for her.

  8. I agree with Mr Smith as to this understanding of the applicant’s grounds – an understanding which is consistent with what the applicant herself told the Court.

Consideration

  1. First, it is clear that the Tribunal did have regard to the applicant’s extensive quotations from the Bible when giving her evidence during the course of the hearing. (See, generally, [89] to [92] at CB 287.)

  2. Second, to the extent that the applicant complains that the Tribunal did not assess whether her extensive references to the Bible were accurate, the Tribunal made no such finding that her quotes were inaccurate, such as to necessitate any assessment, or confirmation, as to the accuracy of the quotations.

  3. What the Tribunal did find in relation to the quotes, and which was ultimately adverse to the applicant, was that ([89] at CB 287):

    “The applicant whilst claiming to be illiterate, though able to read the Bible, continuously quoted passages from the Bible without necessarily imparting an understanding of the appropriateness or otherwise of the words she quoted. She finished a very large number of answers to questions from the Tribunal in this way”

  4. On at least a fair reading of the Tribunal’s decision record, the Tribunal accepted that the quotes from the Bible were accurate but, notwithstanding this, the applicant did not impart an understanding of, or the appropriateness of, the words that she quoted. Even taking into account those parts of the transcript which are in bold, and said to be quotations from the Bible, there is nothing before the Court to show that it was not open to the Tribunal to find that the applicant, despite the quotations, did not impart an understanding of the appropriateness of the words that she quoted.

  5. But importantly, the Tribunal did not reject the applicant’s claim to be a Christian based on any findings of inaccuracy of what she had quoted. This was not an element in the issues determinative of the review. Nor did it fail to take into account the applicant’s evidence, including the extensive references to the Bible.

  6. Further, the Tribunal made no finding that the applicant was not a Christian. A plain reading of what is set out relevantly at paragraphs [89] to [92] (at CB 287) of the decision record reveals that the Tribunal’s reasoning was that a committed Christian, and a person who had been a committed Christian “since the age of twelve” (that is, since 1980 – [90]) would have been able to display “a greater degree of knowledge and understanding in relation to her religion and be able to impart something of her beliefs in a more informative way than the applicant was able to do so.”

  7. The Tribunal also took into account, relevantly, the applicant’s evidence and explanations in relation to her involvement with the Local Church (at CB287):

    “91 The Tribunal is not satisfied that the quoting of the Bible as a display of her faith coupled with her simple explanations of what the local church is, results from any lack of literacy education. Rather, the Tribunal is of the view that continuous involvement with religious activities for some 28 years would have enabled the applicant to better explain what her religion meant to her and how she practices her religion in her local family church irrespective of her level of literacy.”

  8. The basis of the Tribunal’s adverse findings in relation to the applicant’s claims to be a long-standing, practising, and committed Christian did not simply revolve around, or derive solely from, the applicant’s practice of quoting extensively from the Bible. The Tribunal was also influenced by what it said ([92] at CB 287):

    “… that if the applicant was involved in the underground local family church for such a lengthy period of time she would have been far more familiar with the church and better able to explain her position or to be better informed about the position of the authorities with respect to unregistered underground local churches.”

  9. The Tribunal did have regard to the extent of the applicant’s knowledge of Christianity, which included the method of displaying or demonstrating it at the hearing, but also taking into account the evidence of the applicant’s witness, and the photocopied photographic evidence supplied by the applicant of her attending church, it was unable to accept that the applicant had been actively involved with a Christian church in China to the extent that she claimed.

  10. The Tribunal concluded ([92] at CB 287):

    “The Tribunal accepts that the applicant may be a Christian and that she may have from time to time, attend gatherings. However the Tribunal rejects claims to have been actively involved with spreading the word over a lengthy period of time. The Tribunal finds that a person who may have from time to time attended a local church gathering is not of sufficient profile to be of interest to the authorities and in so finding takes into account country information that Fujian Guangdong have the most liberal policy on religion in China especially on Christianity. There is no independent evidence of persecutory treatment of people who may attend a gathering once in a while.”

  11. It is, of course, central to the Tribunal’s task for it to weigh the evidence that is put before it. The Tribunal took into account the applicant’s extensive quoting from the Bible (contrary to the applicant’s claim now), formed a view as to the manner in which this evidence was provided, considered this evidence in light of other evidence given by the applicant and evidence before it, and reached a conclusion adverse to the applicant.

  12. Even if some other Tribunal member may have come to a different conclusion, as the applicant sought to press before the Court, it does not assist this applicant in showing jurisdictional error in relation to this Tribunal decision, given that the Tribunal considered, relevantly, all the aspects of the applicant’s claims, made findings which were open to it on the evidence before it, and for which it gave reasons. Its findings, and ultimate conclusions in this regard, come within the proper exercise of its jurisdiction.

  13. I agree with Mr Smith that in light of the Tribunal’s reasoning, and what is set out in its decision record, the grounds in the amended application do not rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Submissions: Bias

  1. During the course of submissions before the Court the applicant also stated that the Tribunal’s failure to accept her evidence that there was persecution of “genuine” Christians in China revealed bias on its part.

  2. Such a complaint, of course, must be specifically made, and requires evidence in support. It is well settled that allegations of bias, or the apprehension of bias, are serious charges to make against any decision maker (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  3. On what is before the Court, any such complaint, as put by the applicant now, cannot succeed, in any event. The Tribunal did not reject the proposition that some Christians in China may be subject to persecutory harm. That was not the central issue for it to consider. What the Tribunal found was that this applicant did not present with a sufficient relevant profile to be of interest to the authorities. Having regard to country information about the attitude of the authorities in her local area and home province towards practising Christians, and with her profile in Christianity (and having regard to various other factors as to the circumstances in which the authorities would take an interest in the applicant), it found that the applicant was not of interest, and would not be of interest to the authorities, if she were to return to China in the foreseeable future. These findings, again, were all open to the Tribunal to make on what was before it.

Other Considerations

  1. Given that the applicant appeared unrepresented before the Court (albeit that she had the assistance of a “friend”, and had received the benefit of legal advice, which appears to have led to the making of an amended application), I did consider whether the grounds in the originating application may nonetheless assist her.

Ground One

  1. The first ground asserts that the Tribunal failed to comply with the Act in that its findings, and its ultimate decision, were based only upon information obtained from the records of the first respondent’s Department.

  2. When regard is had to the material contained in the Court Book, the premise of this complaint is, plainly, factually incorrect.

  3. While the information obtained from the Department’s records did play some part in the Tribunal’s consideration of the applicant’s claims, it is plainly wrong to say (as is asserted in ground one) that its decision was “only based” upon that information. The Tribunal’s decision involved an analysis and consideration of the applicant’s own evidence provided to it, which led to the Tribunal’s adverse findings as to the applicant’s credibility. It also involved consideration of information available to it as to relevant conditions in China and, it must be said that, given that the applicant appears to have ignored it, the Tribunal considered and accepted the evidence of the applicant’s witness, who gave evidence in support of her claims at the hearing.

  4. Further, to the extent that the ground makes a broad assertion that the Tribunal failed to comply with the Act, I note that this cannot be said to be accurate in relation to the procedural fairness code set out in Division 4 of Part 7 of the Act. This is a case to which s.422B applies, making the matters that are set out in Division 4 the exhaustive statement of the natural justice hearing rule, absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). (See also Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83.)

  5. In this regard, the applicant was invited to a hearing pursuant to s.425. There is nothing in the material before the Court to show that the Tribunal breached any obligation to provide the applicant with a fair hearing, and a meaningful opportunity to be heard.

  6. Further, the Tribunal did write to the applicant pursuant to s.424A, seeking the applicant’s comments on information that it said would be (subject to her response) the reason, or part of the reason, for affirming the decision under review. Nor, with particular reference to what appears to be the Tribunal’s invitation to the Minister’s Department to provide information in writing in relation to the examination of documents submitted by the applicant in connection with her application (see CB 215 to CB 216, CB 244, and in particular CB 248), can I see any breach of s.424 (with reference to recent authorities on s.424 – SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (“SZLPO”), SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65 (“SZMBS”)). The material before the Court does not suggest any other relevant breach.

  7. The applicant claimed (amongst other matters) to have been detained for fifteen days on 27 May 2005 by the PSB. She relied on documents which she said were given to her upon release. These two documents (with translations) are reproduced at CB 43 to CB 46. They were submitted to the Minister’s Department.

  8. The documents were the subject of referral on 21 January 2008 to the Department’s “Document Examination Unit”, by the relevant part of the Minister’s Department dealing with the application for a protection visa. (See CB 63.) A report (dated 13 February 2008) was produced. (See CB 64 to CB 67.) It appears that the applicant’s documents were included with a large batch of other documents relating to other applicants, and were part of this larger referral.

  9. The documents were part of the consideration set out in the delegate’s decision record, which recorded that the documents had been the subject of a referral and subsequent report from the “Department’s document examiner”. (See CB 126.3.) The applicant was said to have been advised of the report “… and was invited to comment” (CB 125.4).

  10. Following the application for review (amongst other matters) the Tribunal (by letter dated 5 August 2008) wrote to a “Joseph Petyanszki” who is described as a “Manager Investigations and Cancellations” in the Minister’s Department, inviting the provision of information in relation to a number of documents, including the “detention” documents submitted by the applicant (CB 215 to CB 216).

  11. The Tribunal’s letter requested “additional information”, specifically in relation to who, on the proffered list of the applicants (which included the applicant), had submitted “detention documents”, and if so, whether the documents had been examined “by the Department’s document examination unit or any other examiner.” It further requested the outcome of the examination. (See CB 215 to CB 216.)

  12. In the Tribunal’s letter of 12 November 2008, a letter which was described as sent “under s.424A” (CB 251, CB 276 and CB 277), the applicant was invited to comment on the substance of the report.

  13. The Tribunal referred to the “forensic document examination report dated 13 February 2008” in its analysis. (See [83] at CB 285.) The Tribunal found the documents submitted by the applicant to be “unreliable”, given the report. It gave “little weight” to the applicant’s evidence regarding this documentation because it had previously found that she was “not a reliable witness”.

  14. I note that a report dated 25 August 2008 from the “Document Examination Unit” (only names and signatures are observed) also relating to the applicant’s two documents, was sent to “Investigations Section Melbourne”. (See CB 235 to CB 236.) This was subsequently received by the Tribunal on 27 August 2008. The report, in substance, adds nothing to the earlier report and was then relied on by the Tribunal.

  15. The Tribunal’s invitation of 5 August 2008 to Mr Petyanszki complied with the requirements of ss.424 (as it then was: prior to the introduction of the current version, which became operational on 15 March 2009 by the Migration Legislation Amendment Act (No. 1) 2009 (Cth) (Act No. 10 of 2009) (Schedule 1 – items 9 to 11)), 441A, 424B, and reg.4.35(3).

  16. While there is a reference to “additional information” in the body of the letter, I cannot see on the material before the Court that any previous request had been made of Mr Petyanszki by the Tribunal. It may be that this was a reference to information provided by him to his colleagues in the Minister’s Department.

  17. The Tribunal’s request was sent in writing, by facsimile communication (CB 214) on 5 August 2008. It is taken to have been received on the day of the transmission (s.441C(5)). It provided the prescribed period for a response – “14 days”.

  18. Further, if the request is seen as being sent to the Minister’s Department, and not to a natural person, then it does not come within the meaning of “person” in s.424(2) (SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (“SZLPO”) at [103] to [105]). Even further, to the extent that the request was for a “written report”, a “document” is not information within the meaning of s.424(2). (See SZLPO at [110] to [111].)

  19. The Court Book contains another letter from the Tribunal dated 4 September 2008 (CB 248 to CB 249), again a request for “additional information”, relating to the seizure of documents under warrant (presumably from the applicant’s migration agent). This also meets the requirements of ss.424 (as it then was), 424B, 441A, and reg.4.35(3). It was in writing and was sent by facsimile communication on 4 September 2008 (CB 246). It is taken to have been received on that day, and gave the prescribed period (“14 days”) within which a response was to be made.

  1. Again, if this is seen as a request for additional information from a government department, it does not fall within s.424(2). (See, again, SZLPO at [103] to [105].)

  2. In any event, it does not appear that the Tribunal received any response to this letter.

  3. In all, therefore, ground one in the originating application does not assist the applicant.

Ground Two

  1. In ground two, the applicant complains that the Tribunal’s decision was “unfair” because it was based on the applicant’s migration agent’s “poor credibility”, which was then “imputed to the applicant.” This was with specific reference to the issue of the applicant’s application being similar to a large number of other applications lodged by her migration agent.

  2. As Mr Smith submits, the fact that an administrative decision is unfair does not, on its own, render it liable to judicial review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [25], Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 to 36 per Brennan J).

  3. The applicant was clearly put on notice as to the striking similarity between the expression of her claims, and the nature of those claims, and many other applications containing those claims made by other clients of her migration agent. She was put on notice in writing by the Tribunal (see the letter of 12 November 2008 at CB 251), and had already been put on notice by the delegate in this regard.

  4. In any event, in this regard, the Tribunal did not impute any poor credibility on the part of the migration agent to the applicant. It simply asked the applicant to explain, in light of her evidence and the drafting of her application, how it was that her application contained such great similarity to a large number of other cases. It was the applicant’s implausible explanations in response to this question that led the Tribunal to find that the applicant was not a credible witness. (See [86] at CB 286.) This issue plainly went to the credibility of the applicant’s claims, and it was clearly open to the Tribunal to pursue and evaluate the applicant’s explanations in this regard. I cannot see error arising from this complaint.

Ground Three

  1. Somewhat in contradiction to other complaints (for example, that the Tribunal’s decision was only based on information obtained from departmental records), the third ground complains that the reason for affirming the decision was the lack of credible evidence given by the applicant, which was said to arise from the Tribunal’s finding that the documents relating to her claimed detention and medical treatment were not genuine.

  2. First, and again, to the extent that this implies that this was the only reason for affirming the decision under review, with reference to what is already set out above, factually, this is not correct.

  3. The reference in this stated ground to “not giving clear particulars to the applicant of information that would be the reason for making the decision” implies some breach of the requirements of the s.424A(1)(a).

  4. In this regard, the Tribunal’s letter of 12 November 2008 made specific reference, amongst other things, to information (in context, obtained from the first respondent’s Department) relating to a forensic examination of the applicant’s detention documents from the local PSB in China. The letter specifically informed the applicant as to the relevance of these findings, as to the reliability of her documents, and that it could lead the Tribunal to not accept that if she were to return to China she would face persecution or serious harm for reason of her religion, and that the Tribunal may therefore affirm the decision under review (CB 251.5).

  5. In relation to what the applicant describes as a “medical document”, the Tribunal’s letter again specifically directed the applicant to her answer to a particular question contained in her application for an Australian visa in relation to evidence that she relevantly gave at the hearing, and with “untranslated booklets” that she provided to the Tribunal following the hearing. It told the applicant that all this information (amongst other information) was relevant to the review because (subject to her response to Tribunal) the information provided  may serve to cast doubt on the credibility of the applicant’s evidence, and that this may be a part of the reason for the Tribunal affirming the decision under review (see CB 254.3).

  6. The applicant responded to these matters (and, indeed, to other matters raised by the Tribunal in its letter) by letter received by the Tribunal on 19 November 2008. (See item 2 at CB 256 and item 8 at CB 259.)

  7. In its decision record the Tribunal did rely, in part, on the forensic report in relation to the detention documents, and found that the documents were “unreliable”, a finding which was open to it on what was before it. In terms of s.424A, I cannot see any breach as to the relevance of the information to the Tribunal’s ultimate decision. The information and particulars were clearly put to the applicant for her comment.

  8. A similar situation exists in relation to the applicant’s documents purporting to go to the issue of her having received medical attention. (See [84] at CB 285.) The Tribunal found that the inconsistency between what she put in her application for a visa, and what she subsequently told the Tribunal at the hearing, was not satisfactorily explained. This, again, was a finding that was open to the Tribunal, and was based on information clearly put to the applicant pursuant to s.424A in its letter, and with a clear link to the relevance of this information to the Tribunal’s findings (CB 254).

  9. In this regard, I also agree with submissions by Mr Smith in relation to s.425, keeping in mind what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. It is clear that as from 9 May 2008, at the time of receipt of the delegate’s decision, that an issue in relation to her application for protection visa, and subsequently an issue before the Tribunal which was determinative of the review, was the authenticity of the detention documents that she had provided in support of her claims. The applicant was able to address the issue of the efficacy of the documentation that she had submitted at the hearing with the Tribunal ([58] at the CB 274), and the applicant’s transcript (at transcript page 27). This reveals that the Tribunal specifically raised with the applicant the delegate’s concern “that the documents were fraudulent” (at transcript page 27.9). The applicant’s answer reveals that she indicated that she was aware of the issue and sought to address it before the Tribunal.

  10. In relation to the medical documents, the applicant provided these to the Tribunal at the hearing. While she may have been generally aware of a concern about fraudulent documents, the medical documents she provided were untranslated. (See [50] at CB 273 and transcript page 23.10 to 24.4.) However, the Tribunal did not rely on these medical documents specifically in rejecting the applicant’s claims. The Tribunal found adversely to the applicant’s credit on other grounds, rejected the applicant’s factual claim to have been arrested and detained, and specifically found that because her claims were not plausible “the applicant was not arrested and detained and that she did not suffer any abuse either physical or mental as claimed” ([85] at CB 286). The applicant’s claim, therefore, to have been physically mistreated and to have required medical attention as a result of her detention, was rejected because the Tribunal found (for reasons which were open to it) that the applicant had not been of interest to the authorities and had not been detained. This complaint also does not succeed.

Conclusion

  1. For the applicant to succeed before the Court, the Court would need to find jurisdictional error in the Tribunal’s decision (at least). I cannot find such error, neither as it is said to arise by way of the amended application, the matter set out in the originating application, or otherwise. This application is therefore dismissed.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  26 August 2009

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Cases Citing This Decision

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SZNLW v Minister for Immigration and Anor (No.2) [2009] FMCA 1307