SZNMK v Minister for Immigration and Citizenship
[2010] FCA 483
•18 May 2010
FEDERAL COURT OF AUSTRALIA
SZNMK v Minister for Immigration and Citizenship [2010] FCA 483
Citation: SZNMK v Minister for Immigration and Citizenship [2010] FCA 483 Appeal from: SZNMK v Minister for Immigration & Anor [2009] FMCA 969 Parties: SZNMK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1255 of 2009 Judges: BUCHANAN J Date of judgment: 18 May 2010 Legislation: Migration Act 1958 (Cth) Date of hearing: 12 May 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 Counsel for the Appellant: Mr T. Ower Counsel for the First Respondent: Mr P. Reynolds
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1255 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNMK
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
18 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1255 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNMK
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
18 MAY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of the Peoples Republic of China. He arrived in Australia on 2 December 2007 and applied for a protection visa on 14 January 2008 under the Migration Act 1958 (Cth) (“the Migration Act”). A question arose about his real identity. He claimed to have obtained the passport of another person for the purpose of fleeing from China. However, investigations made at the request of a delegate of the first respondent (“the Minister”) suggested that it was highly probable that the photograph in the passport (claimed not to be his) and another attached to a Peoples Republic of China identity card issued in a different name (claimed to be his real name) were of the same person. The passport was endorsed with a visa permitting re-entry to Japan, to live and work there, valid until 8 September 2010. This was relevant because it would have permitted an application for refugee status to be made in that country.
These matters were brought to the attention of the appellant. He denied that he was the person identified by the passport. In a decision made on 28 November 2008, the delegate of the Minister rejected that contention and assessed the appellant’s claim for a protection visa against the identity shown in the passport. The delegate found that the appellant, as the person identified in the passport, had valid permission to re-enter and live in Japan. The delegate found further that there was no reason to conclude that the appellant would be persecuted in Japan nor that there would be a real chance that he would be sent back to China by Japan. Accordingly, Australia owed him no protection obligations.
The appellant applied to the Refugee Review Tribunal (“the RRT”) on 15 December 2008 for review of the decision of the delegate. The RRT conducted a hearing on 17 February 2009 and then wrote to the appellant inviting his comments about a number of issues which had been raised at the hearing.
The question of the appellant’s identity was one matter raised, both orally and in writing but there were other matters also concerning the appellant’s claim to be a practising Christian in China and a member of an unregistered church and his reliance upon documents which purported to evidence his release from custody after detention by Chinese authorities.
The RRT decision was handed down on 24 March 2009. The RRT was prepared to accept that the appellant was the person he claimed to be and not the person to whom the passport with the Japanese visa had been issued. The RRT also accepted that the appellant was a member of a local church in China. However, the RRT did not accept the appellant’s claims that the authorities where he lived did not tolerate the local church and found that documents relied upon by the appellant to support his claim to have been arrested and detained had been falsified. The RRT, particularly having regard to the appellant’s reliance on false documents, found his evidence generally not to be credible or reliable. Accordingly, the RRT was not persuaded that the appellant had a well founded fear of persecution.
On 20 April 2009, the appellant filed an application in the Federal Magistrates Court of Australia (“the FMCA”) for judicial review of the decision of the RRT. The proceedings before the FMCA were, on behalf of the appellant, focussed on two issues. Those issues were distilled by the FMCA relying on submissions by counsel for the appellant, as follows (at [32]):
(i)A contention that the country information relied on by the Tribunal in making its finding that there was not a real chance that the Applicant would face persecution if he were to return to China, was not on point; and,
(ii)A contention that the independent country information upon which the Applicant relied had been accepted by another Refugee Review Tribunal conducting a review in respect of a different applicant. That other Refugee Review Tribunal had concluded that there was a real chance that the applicant before it may face persecution if he were to return to China. Mr Ower submitted that, in the circumstances of the decision of the other Refugee Review Tribunal, the Tribunal’s decision was affected by jurisdictional error.
The first contention involved a debate about the weight to be given to some (but not all) of the country information relied on by the RRT. Unless some jurisdictional error was committed and/or the RRT failed to appreciate the nature of the matters with which it was required to deal, the weight which it gave to information before it which was relevant to its assessment was a matter for the RRT as the FMCA correctly found.
The FMCA found that the second contention also did not provide a foundation for a finding that jurisdictional error had been committed. The FMCA found that the RRT was not bound to reach the same conclusion as in an earlier or different case and that the RRT had given adequate reasons why it preferred the information which was before it to the information before the RRT in the other case. The application for judicial review was dismissed.
An appeal to this Court was not filed within the required time. However, the appellant sought leave to file an appeal out of time raising the same matters considered by the FMCA. A judge of the Court granted leave to the appellant to file an appeal out of time but, the appellant accepts, limited the appellant’s grounds of appeal to the second issue dealt with by the FMCA.
As part of his case before the RRT, the appellant relied on a number of earlier decisions of the RRT. The RRT referred initially to the material as follows:
26.[The appellant] submitted a number of decisions of this Tribunal, differently constituted, which discussed the treatment of religion and “cults” in China and referred to various sources of country information.
Following the hearing before the RRT, the appellant sent to the RRT a decision of a different member of the RRT handed down 10 days after the hearing. The RRT in the present case referred to that decision as follows:
60.[The appellant] also submitted a recent decision, dated 27 February 2009, of another Member of this Tribunal. In that case, the Member found that, although much of the applicant’s evidence was untrue, the applicant was a shouter as claimed. Like [the appellant], the applicant in that case was from Fujian Province.
61.The Tribunal in that case referred to the advice of Mr Philip Yee (at paras 83-84) which noted, in relation to Fujian province, that “while the authorities do not recognise the local churches, there (are) not (as) much arrests as before”. The Member concluded that although “there are no reports of recent arrests in Fujian province and Mr Philip Yee states that practices of the local church appear to be more tolerated by the authorities there, the church is still illegal in the province and throughout China”. Given this, the Tribunal found that it is not a far-fetched or remote possibility that the applicant may be detained for a short period and thereby subjected to serious harm.
In the RRT’s “Findings and Reasons” it said:
77.I have had regard to the Tribunal decisions submitted by [the appellant]. However, they do not appear to have considered the same country information that I have considered. Further, the decision of 27 February 2009 acknowledges that there have been no reports of arrest and detention in Fujian province in recent times. What was not before that Member, apparently, was the country information concerning the contemporary liberal attitude towards local Churches in Fujian.
Elsewhere in its “Findings and Reasons”, the RRT dealt with its general conclusions about “country information”. It said:
63.The country information, viewed as a whole, suggests that there is tolerance of unregistered churches in Fujian. …
and, shortly thereafter:
67.… I find it telling that, in a wide search of sources including the State Department, Amnesty International, Freedom House, Human Rights Watch, China Aid Association, Council on Foreign Relations, Christian Solidarity Worldwide, and United Kingdom Home Office Country of Origin Reports, I was unable to find any reports that would support the applicant’s claims of mass arrests and detention of shouters in Fujian Province. [The appellant] claims that he was arrested in a group of 70 people. I do not accept that such a large arrest of Christians would not become known outside of China and therefore do not accept that it occurred.
The RRT rejected claims by the appellant to have been arrested and detained on a number of occasions on various other grounds as well. It found that documents which the appellant submitted as evidence that he had been detained and arrested were false. Reasons were given. No occasion arises on this appeal to dismiss those reasons as unsound. The appellant was also found not to be a credible witness. The RRT’s conclusions about these issues were expressed as follows:
69.Given that I have found that the documents relating to [the appellant’s] arrests and detention in 2005 to be false, and given that I find that the country information suggests that there is tolerance of the local Church in Fujian, and given that there are no reports of mass arrest and detention of local Church members in Fujian in recent times, I am not satisfied that [the appellant’s] evidence, generally, is reliable.
70.Therefore, I reject [the appellant’s] evidence that he was arrested and detained as he claims. Whilst I accept that the country information that I have relied on would not be applicable to describe the state of affairs in the 1980s (when [the appellant] claims to have been detained twice), nevertheless I reject those claims of detention on the basis that I give considerable weight to my finding that [the appellant] was not a credible witness.
In my view those findings provide an important context in which to assess the arguments on the present appeal. They represent an independent, and sufficient, reason explaining the RRT’s decision to affirm the decision of the delegate.
On the appeal, primary attention was focussed on the proposition that the “country information” material referred to in the other RRT decision of 27 February 2009 was more recent than the material referred to by the RRT in the present case. In that other decision, the RRT referred to the Annual Report of the United States Commission on International Religious Freedom of May 2008, UK Home Office: Country of origin Information report dated 16 December 2008 (which referred to a number of other reports), and advice given to the RRT (for the other case) by Mr Philip Yee, an Elder of “The Church in Melbourne” confirming advice he had given in October 2006. The RRT in that earlier case also referred to a report identified as Compass Direct, Officials in China grapple with spread of Christianity dated 4 February 2009. It was the last two pieces of information which were suggested, in present case, to have been the more recent material simply disregarded by the RRT decision now under challenge.
Mr Yee’s latest advice (given in that earlier RRT case), despite submissions to the contrary by the appellant in the present case, does not appear to contradict the RRT’s conclusions in the present case. He said (as quoted in the earlier decision):
“… there is not as much arrests as before”
and
“… while the authorities do not recognise the local churches, there is not much arrest as before”.
The Compass Direct report was more pessimistic although the tone of its comments was predictive, rather than suggesting actual persecution. The RRT member in that earlier decision used the totality of the information to conclude that:
98.…it is not a far-fetched or remote possibility that the applicant may be detained, albeit briefly, in the reasonably foreseeable future for his involvement in the local church. The Tribunal accepts that detention, even for a short period, is deprivation of the applicant’s liberty and amounts to serious harm. Further the applicant is at risk of physical ill-treatment if detained. The Tribunal therefore accepts that there is a real chance that the applicant could be persecuted in the reasonably foreseeable future for reasons of his religion.
In the present case, the RRT came to a different view. It said that it did so based on a wider range of material. It is undoubtedly productive of confusion and uncertainty that different members of the RRT reached different conclusions based on available country information. However, that does not mean that jurisdictional error has occurred in either case. It does not mean, as a matter of merit, that a conclusion that a risk of persecution exists is necessarily to be preferred to one that it does not, although there should be a natural inclination towards protection rather than against it. The assessments to be made are ones for the RRT. I do not accept, in the present case, that there was no “intellectual engagement” by the RRT with the information considered in the other case, as was submitted on the appellant’s behalf. On the contrary, I think it is clear that there was such an intellectual engagement, which led to a different conclusion from a different, assertedly broader, perspective. The reasoning process of the RRT does not reveal any jurisdictional error. The FMCA was correct, for the reasons given, to dismiss the application for judicial review to that court.
The appeal must be dismissed. It is appropriate to dismiss it with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 18 May 2010
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