SZNNP v Minister for Immigration - [2009] FMCA 973

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNNP v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 973

MIGRATION – Review of RRT decision – applicant a citizen of China – where Tribunal refused to give applicant an extension of time to obtain recording of departmental interview – where applicant alleged apprehended bias, failure to take into account relevant material and failure to comply with s.424A – whether Tribunal had unlawfully taken on the role of arbiter of doctrine regarding the applicant’s religion.

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

Minister for Immigration v Eshetu (1999) 197 CLR 611
SZBPQ v Minister for Immigration [2005] FCA 568
WALT v Minister for Immigration [2007] FCAFC 2
SBCC v Minister for Immigration [2006] FCAFC 129

Applicant:

SZNNP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1004 of 2009

Judgment of:

Raphael FM

Hearing date:

18 September 2009

Date of Last Submission:

18 September 2009

Delivered at:

Sydney

Delivered on:

18 September 2009

REPRESENTATION

For the Applicant:

In Person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1004 of 2009

SZNNP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on 2 September 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 5 September 2008. On 26 November 2008, following an interview, a delegate of the Minister refused to grant a protection visa and on 24 December 2008 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended and following that hearing on 9 March 2009 wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”). The applicant requested more time to respond to that letter but it was not permitted and the applicant provided a statutory declaration in response on 23 March 2009. On 31 March 2009 the Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed that he was a person to whom Australia owed protection obligations was the Convention reason of religion. The applicant told that he had been born into a very religious family but, apart from being asked by his parents to stand guard whilst religious meetings were taking place, he did not in fact come to Christianity and the local church until about 2006 when he had met a Ms “C” whose mother was a devout Christian and who reintroduced him into the local church and arranged for his baptism together with a female assistant of his in his tea business.
The applicant told that he used his business activities of wholesaling tea products from Fujian to Henan as a cover to provide substantial support to AIDS victims who were being assisted by the local church. He also distributed Recovery Version Bibles and organised for substantial contributions and donations to be made to the church. He told how on 15 April 2008 an organiser of the church and two other members were arrested by the PSB as they spread the gospel in Henan province and they were sent to a labour camp in June 2008. He told how in August 2008 whilst he was in Nanyang many police surrounded Ms “C’s” home and he and about 10 other church members were arrested by the police. The applicant then used the assistance of a relation of his to obtain a visa and left China on 28 August 2008. He felt that if he returned to China he would be arrested by the PSB for his religious activities within the local church.
At the hearing before the Tribunal the applicant gave detailed evidence and dealt with some inconsistencies between the evidence he had given to the delegate and what he was then saying, blaming the differences upon translation problems. The Tribunal questioned him about the visa which he had obtained to enter Australia which appeared in his passport to be a transit visa through Australia to re-enter New Zealand, a country which had given the applicant a work permit. The applicant strongly denied that he had ever been to New Zealand and indicated that the whole New Zealand visa arrangement had been created by his friends in order to enable him to come to Australia. This was the subject matter of the s.424A letter sent by the Tribunal but it is fair to say that the Tribunal has accepted that the applicant has not visited New Zealand and the matter did not form part of the Tribunal’s reasons for decision.
What did form part of the Tribunal’s reasons for decision was the close questioning by the Tribunal of the applicant’s knowledge of the Shouter version of the Christian religion. In its findings and reasons which commenced at [CB 141] the Tribunal goes into some considerable detail about the questions asked and the responses given and why the Tribunal took the view that the applicant was unable to provide details of his beliefs at a level that would reasonably be expected of a genuine practicing member of the local church. For example at [73] [CB 143] the Tribunal says:
“The Tribunal considers that at the departmental interview the applicant struggled to answer questions about the beliefs and practices of a local church. The Tribunal considers that the applicant referred a number of times to believing in Jesus and the Bible but was unable to demonstrate a level of knowledge of important beliefs of the local church that would be expected of a genuine practicing member. The Tribunal considers that he demonstrated only a very vague and limited understanding of the reasons for or significance of important aspects of the local church’s beliefs such as praying out loud and the existence of a different Bible.”
The Tribunal was aware of the concerns which the applicant expressed about the interpretation at the departmental interview and referred to that matter at [79] [CB 145] concluding that it could reasonably rely on the evidence provided by the departmental interview as interpreted:
“The Tribunal considers that in respect of the evidence the Tribunal has concluded was vague or limited or where the applicant struggled to provide answers, such problems arose not as a result of the lack of understanding of the Department’s questions because of interpreting problems but because of the applicant’s limited knowledge and understanding of aspects of the local churches beliefs and practices.”
The Tribunal also took into account the fact that the applicant had said that he was stressed at the Tribunal hearing and that:
“Practising members of the local church will exhibit different levels of knowledge of their beliefs and that there may be some differences in practices within different churches in China and between churches in China and outside China. However the Tribunal does not accept that these factors explain the applicant’s limited knowledge on a number of important aspects of local church beliefs.” [CB 145]
The Tribunal concluded for the reasons given that it could not be satisfied that the applicant was a member of the local church or that he had engaged in the activities to which he had deposed. The Tribunal considered the applicant’s practice of Christianity within Sydney since his arrival but was unable to conclude that it had been undertaken other than for the purposes of strengthening his claim for protection and therefore disregarded it pursuant to s.91R(3) of the Act.
On 28 April 2009 the applicant commenced proceedings in this Court seeking review of a decision of the Tribunal. There were two grounds of application, the first being:
“In reviewing the decision not to grant me a protection visa, the Tribunal failed to act according to substantial justice and the merits of the case; and the Tribunal failed to provide me a fair chance.”
There are about a page and a half of alleged particulars of this ground which deal with the failure of the Tribunal to provide the applicant with a copy of the disk of the recording of the departmental interview. The Tribunal had told the applicant that it was not prepared to give him an extension of time in order to obtain this CD because he had had almost six months from the time of the departmental interview to do so. In his helpful written submissions, Mr Marcus for the Minister notes, to the extent that the ground constitutes an allegation of a breach of section 420 of the Act, it is now clear from the decisions of the High Court in Minister for Immigration v Eshetu (1999) 197 CLR 611 at [628] and SZBPQ v Ministerfor Immigration [2005] FCA 568 per Hely J that compliance with s.420 is not a precondition to lawful decision-making, that section being a facultative one rather than a restricted provision.
Insofar as the Tribunal made a decision concerning this provision of further time in order for the applicant to obtain the CD, there are two answers. First, the Tribunal is the master of its own procedures and provided that it exercises its discretions reasonably and judiciously, it is entitled to make those determinations without fear of oversight by this Court. It seems to me the applicant has not established that, in making the decision which it did concerning the provision of the CD, the Tribunal acted otherwise than lawfully. The second answer is that the Tribunal in any event considered the complaints made by the applicant over the interpretation at the interview and a fair reading of the Tribunal’s decision would indicate that it did not utilise any matters of concern to the applicant in coming to a dispositive view.
The second ground contained in the application was that:
“The Tribunal failed to consider my important evidences and or the Tribunal failed to take any genuine attempt to do so.”
The particulars of this ground also make reference to the CD with which I have already dealt. If the applicant’s ground is that the Tribunal failed to take into consideration the relevant material, then to my mind that ground fails not only because the material is not particularised but because the Tribunal’s decision record is thorough and lengthy and would tend to indicate that all matters raised by the applicant were taken into account.
On 9 September 2009 the applicant filed with the Court some written submissions. The first submission is that the Tribunal:
“Has included a reasonable apprehension of bias.”
This allegation is particularised by saying that there is no evidence that the Tribunal has fairly and independently considered the applicant’s claims, then repeats the concerns about the interpretation at the departmental interview. It gives particulars of alleged incorrect interpretation. The point that the applicant has not clearly understood is that the Tribunal hearing is a hearing de novo and the matters raised at the departmental interview were all discussed again with the Tribunal. It would be very difficult for all failures at the departmental interview to be considered to found jurisdictional errors in the Tribunal’s own decision, particularly where the failures of interpretation which the applicant alleges, were specifically considered by the Tribunal.
The applicant, in his second submission, says that the “the Tribunal failed to comply with its obligations under section 424A(1) of the Act” and again this is particularised by further reference to the failure to provide the CD and continues:
“[i]n other words, it is definitely the case that the Tribunal failed to give me clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review; and the Tribunal failed to ensure that I understand clearly and completely why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and that the Tribunal failed to create a genuine opportunity for me to comment on or respond to it.” (Emphasis in original).
The Tribunal wrote to the applicant under s.424A on 9 March 2001 and the letter is found at [CB 98 - 103]. I do not think it is necessary, for the purposes of these reasons, to set out in any detail the matters referred to but I would point out that after the information is provided there is a paragraph which commences in bold:
“This information is relevant because…”
and a full page [CB 101-102] is given over to that explanation. The explanation is followed by a paragraph which is headed:
“The information is also relevant because it may lead the Tribunal to doubt your credibility generally, that is, whether you can be believed.”
That statement is also in bold and is followed by a half page of explanation [CB 102 – 103]. The applicant was assisted by a migration agent and provided a statutory declaration of some three and a half pages in response [CB 111 – 114]. The Tribunal took the response into consideration before coming to the views which I have already extracted. The applicant has been unable to satisfy me that this breach of s.424A, un-particularised as it is, amounts to a jurisdictional error.
The applicant appeared before me today. He told me that he believed that the Tribunal had made a decision without looking at his documents. I think he meant without considering his evidence because this is not one of those cases where an applicant has provided substantial corroborating documentation. He began to tell me the story of his life and his relationship with the Christian religion and the Shouters sect in particular but I informed him that this would appear to be requesting the Court to indulge in a merits review of the Tribunal’s decision. He then submitted that the Tribunal had decided that he was not a Christian based upon a few facts which indicated that the Tribunal did not understand his claims.
Once again he began to stray into the area of merits review. He then argued that the Tribunal had treated him unfairly because it had made a decision about his adherence to the Christian religion and the Shouters sect on the basis of his response to questioning about the religion. He explained that he was not good at expressing himself and that his way of Evangelising was different from what other people’s might be. I think that if the applicant had had a better understanding of the role of this Court in relation to decisions of a Tribunal he would have attempted to put his argument on the basis that the Tribunal had exceeded its role and taken on the role of arbiter of doctrine, with respect to his religion. The Full Bench, in WALT v Minister for Immigration [2007] FCAFC 2 indicated it was not appropriate; at [28] per Mansfield, Jacobson and Siopis JJ]; but the Court went on to say at [30]:
“We agree with the learned primary judge that the Tribunal … did not set a level of knowledge of and commitment to Christianity which the appellant was required to meet to satisfy it that he had converted to Christianity. It merely explored the level of his knowledge and understanding and his commitment.”
In SBCC v Minister for Immigration [2006] FCAFC 129, another Full Bench, French, Lander and Besanko JJ, said at [47]:
“Where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion, in order to assess the genuineness of the claim. That is what happened in this case.”
I accept that it could be argued that the Tribunal’s use of the phrase “unable to demonstrate a level of knowledge that will be expected of a genuine practising member” went further than mere questioning and purported to set a standard. But a Tribunal’s decision is not meant to be read with an eye attuned to error and if one reads this particular decision, both the précis of the Tribunal’s questions and answers to the applicant and its conclusions found in its findings and reasons, I am of the view that in this case the Tribunal did no more than put to the applicant questions that would enable it to ascertain whether it could be satisfied that he truly was an adherent.
In those circumstances, I am unable to provide the applicant with the review he seeks. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $4,000.00.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 7 October 2009