SZNLY v Minister for Immigration
[2009] FMCA 631
•24 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNLY v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 631 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.424AA does not create any notification obligations – s.424AA is an optional method by which Tribunal may discharge its s.424A obligations – Court cannot review merits of visa application – Tribunal under no duty to make enquiries. |
| Migration Act 1958, ss.424AA, 424A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 SZMMP v Minister for Immigration & Citizenship [2008] FMCA 1509 Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 |
| Applicant: | SZNLY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 885 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 24 June 2009 |
| Date of Last Submission: | 24 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms L. Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 885 of 2009
| SZNLY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, her husband was involved in organising underground Church activities. She alleges that her husband was a Christian human rights activist in China and that this subsequently led to him being arrested and charged with various crimes.
The applicant claims to fear persecution in China because her husband is still in gaol and she is a member of a house church in China.
After her arrival in Australia on 27 September 2007, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 17 October 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9 of the Tribunal’s decision (Court Book (“CB”) pages 120 – 125).
In her application for a protection visa, the applicant claimed that she feared returning to China as her husband had been arrested. In her application the applicant refers to her “statement”, however, the Tribunal did not see any statements apparently prepared by her. Rather, in support of her application for a protection visa the applicant provided three reports which the Tribunal was satisfied identified the applicant’s case.
The first of these reports, entitled “Radio Free Asia Report” (CB 34-37) and which the Tribunal understood to be dated 20 June 2008, stated in part that:
a)the applicant contacted China 64 Tianwang Human Rights Service (“China 64”) from Australia to inform them that her husband, whom I will describe in these reasons as “Mr D”, was arrested and “undergoing persecutions”;
b)Mr D is a devout Christian who helped to organise underground church services in Fuzhou. He is also a “Christian human rights protector” and published an open letter about “safeguarding the Constitution and the freedom of religious belief”;
c)he had been interviewed by the police many times and on 9 November 2007 during an interview he was beaten and suffered a “bone fracture”;
d)he was arrested again on 3 June 2008 after police intercepted a parcel from Australia containing “Bible materials and overseas Chinese Christian publications” and was charged with “the crime of inciting subversion of state power”;
e)China 64 followed Mr D’s case and were told by Fuzhou Police that he had been arrested and sent to “re-eduction through labour” for three years ;
f)“the founder” of China 64 said that Mr D “would not bow to persecutions” and he had been involved in “activities safeguarding Christian human rights” in China for ten years; and
g)the Chinese authorities are “getting tougher on cracking down underground churches” and are starting to eradicate and persecute such churches.
The second report, titled “The Health Condition of Human Rights Activist [Mr D] is worrying” (CB 32-33) concerns the living conditions where Mr D is imprisoned. The report outlines that Mr D has been locked up with criminals in a re-education centre where he is intimidated by these criminals who are “backed by higher authorities”. It states that the authorities locked up Mr D with criminals “to sap his will” and “shake his confidence”. It also states that the treatment of Mr D is an example of the way the authorities control dissidents and how they never let down their guard against such dissidents as they dread that “people would launch certain activities that would string things together”. The report stated that according to “Boxun News”, the authorities will consider releasing Mr D on bail after he completes one third of his term.
In addition, the applicant provided a copy of a document titled “Fuzhou Public Security Bureau, Summons” and a copy of a document titled “Fuzhou Public Security Bureau, Arrest Warrant”, both of which were in English translation and which possibly referred to the applicant’s husband. She also provided selected country information extracts referring to, amongst others, Mr D and a Mr Q. The Tribunal noted that the applicant gave two different versions of her husband’s name, one on her protection visa application and another in the summons and arrest warrant.
On 23 December 2008 the Tribunal sent the applicant a letter pursuant to s.424A of the Act. The Tribunal informed the applicant that it was unable to find evidence of reports which she provided and noted that as the reports appeared to be “sourced principally … in evidence provided by the applicant”, it might not accept them to be either genuine or independent corroboration of her evidence. The Tribunal further noted that it might find these documents to be false or at least to not refer to the applicant’s husband. In addition, the Tribunal invited the applicant to comment on the delay between her arrival in Australia on 27 September 2007 and her application for a protection visa on 22 July 2008. The applicant was also informed that if the Tribunal was sufficiently satisfied that she was not a witness of truth it might reject all her material evidence as false.`
By letter dated 7 January 2009 the applicant provided a response in which she clarified the correct spelling of her husband’s name and claimed that the pronunciation of the two different spellings provided were similar in different Chinese dialects. She also explained that the delay in her lodgement of a visa application was because she had come to Australia to accompany her teenage daughter and had had no reason to claim refugee status until her husband’s arrest in 2008.
The applicant then appeared before the Tribunal on 16 February 2009 to give evidence and present arguments. In addition to canvassing some of the matters summarised earlier in these reasons, she told the Tribunal she was a member of a house church in China and that she feared persecution for this reason.
On 16 February 2009 the Tribunal wrote a further s.424A letter to the applicant in which it sought her comments on information it had obtained from a translation service concerning the correct pronunciation of her husband’s name.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal did not accept that the applicant was a witness of truth and was satisfied that she was prepared to embellish and entirely fabricate various material claims to enhance her prospects of invoking refugee protection obligations in Australia. The Tribunal noted that although she might be illiterate as claimed and that she was poorly educated, the evidence put by her was, for the most part, inclusive of the recent past and allegedly of her own personal experience and, after repeated questioning, she would often respond in a way the Tribunal felt was meaningful to the questions being put to her.
The Tribunal found that none of the applicant’s material claims were true.
At the hearing the applicant alleged that she said she had been a member of a house church in rural China since 1997 and, amongst other things, that she and her family moved to a city where she continued with the house church. When the Tribunal asked why this claim had not been made previously she said that no one had asked her this before. The Tribunal rejected the applicant’s claim of being a member of a house church in China.
The Tribunal was not satisfied that the applicant’s husband is the same person as the person detained in June 2008 or that her husband is the same person as the person named in the media reports, noting that:
a)the applicant claimed that her husband finished a book in gaol, however, she did not know what was in the book or whether it had been published;
b)the applicant claimed that her husband “published an open letter about safeguarding the Constitution and the freedom of religious belief”, however, when initially asked about this letter she said that she did not know what was in it, when it was published or when he had come to the adverse attention of the PRC authorities for publishing such a letter;
c)the Tribunal considered it reckless that the applicant would send a parcel to her husband in China containing “Bible materials and overseas Chinese Christian publications” if he was of such adverse interest to PRC authorities as claimed and rejected this allegation based on its wider rejection of her credibility;
d)the Tribunal noted the discrepancy between the spelling of the applicant’s husband’s name on the “Arrest Warrant” and the “Summons”, and its spelling on the protection visa application. The applicant said that the Mandarin and Fuzhou dialects pronounced her husband’s name differently and this accounted for the different spellings. The Tribunal sought advice from a translating service which advised that this assertion was incorrect. When this was put to the applicant at the Tribunal hearing she said this advice was wrong. The Tribunal rejected this response as false; and
e)the Tribunal put to the applicant at the hearing that, except for her response to the s.424A letter, she had not provided written claims and written evidence other than material from what appeared to be a media outlet.
The Tribunal noted the delay between the applicant’s arrival in Australia and her lodgement of the protection visa application and that she had been issued a second passport on 3 June 2008. In light of the applicant’s claims that her husband was a Christian human rights activist in China of ten years’ standing who had increasingly come to the adverse attention of authorities and that she had been a member of a house church in China for ten years, the Tribunal said it would ordinarily have expected that she would have sought refugee protection in Australia sooner than ten months after her arrival here. The Tribunal rejected the applicant’s explanation for the delay as false.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal breached s.424AA of the Migration Act 1958 by giving clear particulars of information it considered would be the reason or a part of the reason for affirming the decision under review but failing to ensure that the applicant understood the consequences of the information being relied on affirming the decision under review.
(2)The Tribunal breached s.424AA by failing to give the Applicant written particulars of information AS ABOVE (a) i ii iii This information is relevant to the review The Tribunal has information that would; subject to any comment I would make, be the reason, or part of the reason, for deciding that I am entitled to a protection visa.
(3)The Tribunal failed to attain, or failed to exercise, jurisdiction by reason that the RRT erred in law in failing to take into account a relevant consideration for the reason that the Tribunal made finding that were illogical and/or irrational.
(4)The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the Applicant had a well-founded fear of persecution for a convention reason on the grounds of religion also the Tribunal failed to investigate the Applicant’s genuine claims.
The applicant raised a number of additional issues during the course of her oral submissions today.
Breach of s.424AA
At the outset it should be noted that s.424AA does not create any notification obligations which the Tribunal must discharge. Any such obligations are created by s.424A and if there is no s.424A obligation there is no s.424AA obligation. Section 424AA is only an optional method by which the Tribunal may discharge its s.424A obligations, should there be any: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46.
In this case, it is tolerably clear that the Tribunal did not avail itself of this option. For this reason, the first ground pleaded in the application does not demonstrate jurisdictional error on the part of the Tribunal.
Breach of s.424A
Although the second ground in the application refers to s.424AA as having been breached, in truth it is an allegation that the Tribunal did not comply with the obligations it had under s.424A. This allegation is particularised by reference to the particulars of the first allegation made in the application. Those particulars are:
(i)information concerning Christians in China; RRT decision page 10-12 of 15 para 39-44;
(ii)information contained in the Applicant’s daughter’s passport; a translated copy of the Applicant’s daughter’s birth certificate with her father’s name (the Applicant’s husband’s name) also a translated copy of the applicant’s marriage certificate with her husband’s name spelt in English.
(iii)information contained in the applicant’s protection visa application related Applicant claim that she was a member of a house church in China and that she personally feared persecution in China for that reason and a letter from Victor Yzung, B.Min, J.P (senior pastor) to the extent that SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 suggests that information and particulars (a) and (b) do not fall within s.424AA. It is wrongly decided.
Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) …
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
As to the first of the matters raised by the particulars, namely, information concerning Christians in China, this is information falling within s.424A(3)(a), an exception to the notification requirements set out in s.424A(1).
The information referred to in the second paragraph of the particulars is information which the applicant herself provided to the Tribunal for the purposes of its review and therefore falls within the operation of s.424A(3)(b), another exception to the operation of s.424A.
The third particular refers to information contained in the protection visa application and a letter signed by a Mr Yzung which is alleged to have accompanied the protection visa application. Such information falls within another exception to the operation of s.424A found in s.424A(3)(ba). But in any event, the information alleged to have been contained in or with the protection visa application was not so provided to the Minister’s department and thus this allegation fails on the facts.
As to the allegation that SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 was wrongly decided, I do not agree and said so in SZMMP v Minister for Immigration & Citizenship [2008] FMCA 1509. My decision was affirmed on appeal by Lander J whose decision enjoyed the approval of the Full Court of the Federal Court in SZMCD’s case. I do not agree that SXLXI’s case was wrongly decided but, even if I did, I am bound by the Full Court’s finding that it was correct: SZMCD’s case at [133].
Failing to take relevant considerations into account and illogicality
The applicant particularised the third allegation made in her application as follows:
The applicant’s claim she had been a member of a house church in a rural part of China since 1997, was a relevant consideration in respect of the applicant’s claims of being at risk of persecution. The Tribunal did not take that claim into account as, illogically and/or irrationally, the Tribunal found that there was no claim had been made by the applicant.
Contrary to the applicant’s allegation in the application, this matter was indeed considered by the Tribunal and that consideration can be found at para.31ff of its decision. Further, even were illogicality to be a basis upon which a jurisdictional error could be found, I discern no illogicality in the Tribunal’s consideration of this issue.
Tribunal applied the wrong test
As to the applicant’s allegation that the Tribunal applied the wrong test when considering her application, the Tribunal’s consideration and discussion of the law at pp.2-4 of its decision discloses that this allegation cannot be made out. Clearly, the Tribunal understood the law and the tests which it had to apply and it acted accordingly.
Turning to the allegation that the Tribunal failed to investigate the applicant’s genuine claims, it should be noted that the Tribunal has no duty to make enquiries although, in this case, it did undertake some enquiries on its own account. The Tribunal’s duty was to consider the claims which the applicant made and the evidence placed before it, not to do something for the applicant which she did not herself do.
Allegations made today
The first allegation made by the applicant today in her oral submissions was that she had been a Christian for many years, that what she had told the Tribunal was true and that she did not make false statements. By these submissions, the applicant appeared to invite the Court to reconsider the merits of her review application determined by the Tribunal. As noted earlier in these reasons, the Court cannot undertake a further review of the merits of her visa application. Fact finding and decisions on the merits of such applications are responsibilities reposed in the Tribunal, the Court’s role being to determine whether or not the Tribunal has correctly applied the law and applied correct procedures in the course of its review.
The second matter raised by the applicant today was that the Tribunal failed to make any decision concerning the visa application to the extent that it related to her daughter. However, the review application made to the Tribunal (CB 73-76) discloses that it was made only in relation to the applicant, there being no reference in that form to the applicant’s daughter.
The third matter raised by the applicant today related to interpretation or translation issues, relevantly at the Tribunal hearing and, in particular, that the interpreter provided to her at that hearing spoke Mandarin rather than the Fuzhou dialect. As to the conduct of the hearing itself, the issue of the interpreter’s appropriateness was canvassed with the applicant by the Tribunal. In this regard, the Tribunal records the following:
In the course of the hearing, the interpreter explained he was having some difficulty understanding the applicant’s claims. The Tribunal had already confirmed with the applicant she ‘had no problem with the interpreter’. The Tribunal then asked the interpreter if the dialect/accent spoken by the applicant was different to his. The interpreter said this was not the problem, but the applicant was (words to the effect) starting an explanation and ‘trailing off’. The Tribunal then put to the applicant (words to the effect) it was not having problems with the interpreter but to please respond more fully to questions being put to her. (para.35)
It may be that the applicant’s submission today is a reference to the translation or transliteration of her husband’s name and the difference, in the English language, between the words used to identify her husband’s name in her protection visa application and those in the translated documents she supplied to the Tribunal and to the Minister’s department. However, the Tribunal made its own enquiries in connection with this issue and it did not rely on the interpreter who assisted at its hearing. It put the results of its enquiries to the applicant in the s.424A letter of 16 February 2009 referred to earlier in these reasons. I do not conclude that any issue of jurisdictional error is disclosed by this allegation concerning translation associated with the Tribunal process.
The applicant also alleged today that the Tribunal appeared not to want to find the internet articles, copies of which she had supplied in support of her visa application. No evidence was adduced to support an inference that the Tribunal’s statements that it had endeavoured but failed to find that those articles on the internet was incorrect and deliberately so. The necessary implication of the applicant’s allegation is that the Tribunal failed properly to discharge its obligations under the Act and failed to approach the discharge of those obligations in a good faith manner. Such an allegation is a serious one which must be proved with cogent evidence. I find such an allegation has not been demonstrated in the context of this case.
The next allegation made by the applicant was that the Tribunal did not ask for her documents, for instance, a letter from her pastor confirming that she is a Christian and when she became a Christian. As discussed earlier in these reasons, the Tribunal is under no obligation to undertake enquiries. As has been said in the High Court, the Tribunal has no obligation to prompt an elaboration of an applicant’s case which he or she herself declines to make: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58].
Finally, in her submissions today the applicant suggested that she had been unable to understand all of the submissions made today by counsel for the Minister by reason of the accent of the interpreter assisting the Court. It should be noted that the applicant did not allege that there was a difference in the words used by the interpreter today, merely a question of accent and it might also be observed that at no point during the hearing did the applicant ask the interpreter to pause or ask the Minister’s counsel to pause so that any matters could be clarified should that have been necessary.
Conclusion
In this matter I find that jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 July 2009
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