SZNRB v Minister for Immigration
[2009] FMCA 980
•22 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNRB v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 980 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – the Tribunal does not need a negative case to be made out against an applicant before it can affirm the decision under review – the question is whether the Tribunal is satisfied that the applicant has met the criteria for a protection visa. |
| Migration Act 1958, ss.91R, 422B, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZNRB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1384 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 22 September 2009 |
| Date of Last Submission: | 22 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1384 of 2009
| SZNRB |
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, he claims, he was a member of the underground Christian Church. He alleges that while in China he participated in church activities and illegal gatherings and was consequently detained and sent to a labour reform camp by the Chinese authorities.
The applicant claims to fear persecution in China because of his Christianity.
After his arrival in Australia on 4 October 2008, the applicant applied for a protection visa. This was refused by the Minister’s delegate on 22 January 2009. 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 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 87 – 93).
Protection visa application
In a statement attached to his protection visa application, the applicant claimed that:
a)in 2005 he met “Uncle Liu”. Uncle Liu was a former priest who had been persecuted during the Cultural Revolution but survived because of his belief in Christ. The applicant was moved by Uncle Liu’s story and became curious about Christianity;
b)in a telephone conversation the next day, Uncle Liu told the applicant that there was a residential church nearby. The applicant subsequently contacted “Mr Wang”, the person in charge, and decided to become a member of the church;
c)Mr Wang told the applicant that the church was frequently harassed by police and officers from the neighbourhood committee. As such, while they studied the Bible, prayed and sang hymns regularly, they did so with caution;
d)during a gathering at Mr Wang’s house on 23 December 2006, the police came and arrested “all ten of them” on charges of illegal gathering. The applicant was detained for seven days during which he was ill-treated. He was also made to pay a fine. He was told that he would be gaoled if he did not stop gathering;
e)after his release, the applicant and some others decided to gather at a warehouse. However, on 9 September 2007 the warehouse was “ambushed” by the police. The applicant tried to intervene when one of the officers became rude to an elderly worshipper and was, as a consequence, taken away on charges of gathering an illegal crowd and of spreading an evil cult. He was sentenced to six months labour reform and was released on 8 March 2008; and
f)he was dismissed from his job and decided to leave China in search of religious freedom.
Tribunal
The applicant made the following additional claims at a hearing before the Tribunal:
a)in 2005 an opportunity for promotion arose at his workplace. All of the applicant’s colleagues believed that he would get the promotion but the position instead went to a person who had connections with “the leader”. This person picked on the applicant and found an excuse to demote him. The applicant subsequently lost his position as “deputy section chief”;
b)one day, during an event organised by the neighbourhood, the applicant met Uncle Liu. Uncle Liu learned about the applicant’s situation and encouraged him to turn to God. He told the applicant of a nearby underground church which was run by Mr Wang. The applicant contacted Mr Wang and thereafter became involved in church activities;
c)he formally joined the church in February 2006. Prior to this, he was not involved in any Christianity-related activities;
d)with respect to his position at work, the applicant variously stated that he was demoted; that he was not demoted; that “they” wanted to transfer him so that he could start his job; and that there was an intention to demote him but “they” kept his position. The applicant subsequently stated that he was dismissed on 9 September 2007;
e)information in the Minister’s departmental file relating to the applicant’s subclass 456 business visa application, to the effect that he was employed as a senior manager for a named organisation (“S&T Development”), had been made up by his agent. In addition, the information in his protection visa application to the effect that he had worked for S&T Development between September 1995 and July 2004 was an error made by his agent. He was “100% certain” that he had never worked for S&T Development;
f)between 1996 and September 2007 he worked for an electricity company but they did not produce a work certificate for him so his agent had to find one from another source;
g)whilst in China he was not contacted by the Australian authorities regarding his subclass 456 visa application but said otherwise in his interview with the department because he “forgot” and because his Chinese travel agent told him to say so;
h)he was detained by the authorities on 13 December 2006. He then said that it was either 13 or 23 December 2006 but he was not sure and his memory was not correct;
i)he has documents relating to his detention in China but did not bring them to Australia. When he left China he did not know that he would be lodging an application for a protection visa;
j)he did not have any difficulties departing China; and
k)in April 2007 he went to Japan “to look around” but returned to China because there were not many Christians there. Also, his situation at the time was not so bad and he had not lost his job.
In submissions dated 21 April 2009 in response to a s.424A notice from the Tribunal, the applicant claimed that:
a)he indicated in his business visa application that he worked for S&T Development because he intended to go overseas to avoid persecution. However, he did not work for that company;
b)the information contained in his protection visa application and the information provided during his departmental interview was incorrect. He was “brainwashed” by his travel agent who told him to say that he had worked for S&T Development;
c)it was his agent who had been in contact with Australian immigration officers in China; and
d)his real working position was manager of an electricity company from which he was dismissed in September 2007 because of his Christian beliefs.
With his response to the s.424A notice the applicant enclosed a business card for S&T Development which he submitted was fake. He also enclosed a translated document issued by a medical insurance centre indicating that he was part of a work unit for an electricity company in March 1988.
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’s decision was based on the following findings and reasons:
a)the Tribunal found that there were significant contradictions and inconsistencies in the applicant’s evidence:
i)he gave varying evidence about whether or not he had been demoted at work;
ii)information contained in the department’s file relating to checks undertaken in respect of the applicant’s application for a business visa indicated that he was employed as a senior manager at S&T Development. This contradicted his oral evidence to the Tribunal that he had been dismissed by his employer;
iii)in his application for a protection visa the applicant also claimed that he worked for S&T Development between September 1995 and July 2004 but at the hearing before the Tribunal he said that he was “100% certain” that he had never worked for that company;
iv)at his departmental interview he stated that he had been contacted by the Australian Embassy in China in relation to his business visa application but at the Tribunal hearing he said that he had never been contacted by the Australian authorities in China in relation to that visa application; and
v)in his response to the Tribunal’s s.424A notice the applicant said that the information provided in his protection visa application form and in his interview with the Minister’s department was incorrect and that he had been brainwashed by the Chinese travel agent who told him that he had to say that he worked for S&T Development and that he “must not ‘reveal it to anybody’”; and
vi)in his protection visa application the applicant claimed that he was detained on 23 December 2006. However, at the Tribunal hearing he first said that he was detained on 13 December 2006 and then said that it was either 13 or 23 December 2006 but he was not sure;
b)in light of the contradictions and inconsistencies in his evidence, the Tribunal found that the applicant was not a credible witness;
c)in addition, the applicant provided no independent corroborative evidence to support his claims that he had been detained. The Tribunal was not persuaded by his explanation that he had such documents but did not bring them to Australia because he did not know that he would be lodging an application for a protection visa;
d)the fact that the applicant was able to depart China without difficulty suggested to the Tribunal that he was not of any adverse interest to the Chinese authorities;
e)the Tribunal found it implausible that the applicant, had he feared the harm claimed, would have returned to China after his trip to Japan in April 2007 given his allegation that he had been detained and ill-treated in December 2006; and
f)in light of its concerns about the applicant’s credibility, the Tribunal gave no weight to the translated document from the medical insurance centre or the S&T Development business cards.
Consequently, the Tribunal did not accept that the applicant was a Christian or that he had been involved in any Christianity-related activities while in China. As a consequence, the Tribunal did not accept that he had suffered any of the claimed harm or that there was a real chance that he would suffer any such harm in the reasonably foreseeable future. Further, the Tribunal was satisfied that the applicant would not engage in Christianity-related activities in China because he did not have a genuine interest in the practice of Christianity.
Finally, the Tribunal accepted that the applicant had participated in Christianity-related activities in Australia. However, the Tribunal was not satisfied that he had engaged in such conduct otherwise than for the purpose of enhancing his application for protection. The Tribunal therefore disregarded such conduct in Australia pursuant to s.91R(3).
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.I can not [sic] go back to China because there is no religious freedom in China. I will be persecuted by Chinese government.
2.RRT considered my case unfairly. They doubt my claim without substantive evidence.
3.Procedural Fairness has been denied by RRT.
Today in his oral submissions the applicant also said the Tribunal had not afforded him a proper hearing.
Ground 1
The first ground invites the Court to review the Tribunal’s conclusion that the applicant does not have a well-founded fear of persecution for a Convention reason. The Court cannot do this. Its role is to supervise the lawfulness of the Tribunal’s conduct. That is to say, it can only review whether the Tribunal applied correct procedures when conducting its review and whether the Tribunal correctly applied the law in reaching its decision. If the Tribunal applied correct procedures and correctly applied the law then the fact that it may have arrived at incorrect factual conclusions, or that a differently constituted Tribunal might have arrived at different factual conclusions, is of no significance in judicial review proceedings such as these.
As a result, the first ground pleaded in the application does not disclose a basis on which the Tribunal’s decision might be set aside.
Ground 2
The second ground contains two elements. The first is that the Tribunal considered the applicant’s case unfairly. Such an allegation may either be a disagreement with the outcome of the Tribunal’s review or an allegation that procedural fairness was denied the applicant. To the extent that it is the first of these possibilities, such a matter will not lead to a finding of jurisdictional error on the Tribunal’s part for the same reasons that the first ground pleaded in the application does not.
If the first part of the second allegation involves a claim that procedural fairness was denied, this matter will be dealt with in the context of the third allegation in the application.
The second part of the second allegation is to the effect that the Tribunal did not have an adequate evidentiary basis for doubting the applicant’s claims. The Tribunal does not need to have mounted a negative case against the applicant or to have identified evidence contrary to an applicant’s claims in order for it to affirm the delegate’s decision. The question is whether the Tribunal is satisfied that the applicant has met the criteria for the grant of a protection visa. Although there is no formal onus of proof placed on an applicant, he or she must, nevertheless, place evidence or arguments before the Tribunal of sufficient persuasiveness that the Tribunal is satisfied that the applicant meets those criteria. If the evidence and arguments, from whatever source, fail to satisfy the Tribunal that the applicant meets the criteria for a protection visa, then the Tribunal has no option but to affirm the delegate’s refusal.
But in any event, when the Tribunal makes findings of fact the question will be whether there was evidence to support such findings. The significance to be attached to any particular evidence and the choice of evidence as the basis for findings are matters for the Tribunal and not the Court. As long as there is evidence to support a finding, and absent certain vitiating circumstances which do not exist here, there will be no jurisdictional error. In this case it is apparent that the Tribunal’s findings and conclusions were open to it on the evidence.
Consequently, the second aspect of the second ground pleaded in the application does not disclose jurisdictional error.
Ground 3
Turning to the third ground of the application, for the purposes of the Tribunal’s review, concepts of procedural fairness have been codified by s.422B in the provisions of div.4 of pt.7 of the Act. Subject to the matters raised today at the hearing, which will be considered shortly, a review of the evidence before the Court does not disclose any breach by the Tribunal of its obligations under that division including, most importantly, ss.424A, 425 and 422B(3).
Submissions today
The applicant said today, in essence, that he was denied a proper hearing before the Tribunal because he was in a low mood at the hearing, could not proceed with the hearing and, in substance, that the Tribunal’s hearing was terminated because he could not continue. The applicant also said that the Tribunal told him that it would put written questions to him.
In para.44 of the Tribunal’s decision the following is recorded:
At the end of the hearing the Tribunal asked the applicant if there was anything else he wanted to say. He said he was not well. He said his health has not been good. He said his family in China is not so good. He said after he left China the police have harassed his family. He said his father has had a stroke and was in a wheelchair. He said his dad has now recovered. He said if he could return to China he would return at once. He said that he has lost his job in Australia about two weeks ago.
In para.45 of its decision the Tribunal said:
The Tribunal indicated to the applicant that it would be sending him a s.424 letter inviting him to comment on and/or respond to potentially adverse material. The Tribunal asked him if he needed more time to comment on and/or respond to information given in the course of the Hearing and the applicant did not request any such further time.
It is not apparent that the applicant was saying to the Tribunal that he could not continue with the hearing. The statements made by the applicant at the Tribunal hearing, and recorded in paras.44 and 45 of its decision record, appear to be no more than general observations by the applicant about his health. They are not statements that he could not continue with the hearing. As to the Tribunal’s statement that it would send a letter to the applicant, it did in fact send him a s.424A notice and he responded to it.
In his submissions today the applicant indicated that he had had insufficient time within which to respond to the s.424A notice. However, in the reply which he did provide he does not say that he needed additional time in which to respond. The Tribunal cannot be criticised for not providing the applicant with further time to respond to the s.424A notice if he did not request additional time.
Moreover, if there had been some substance in the applicant’s allegation that he was too unwell to proceed with the hearing or that the hearing had been truncated in some way, it might have been expected that the applicant would have adduced some evidence of this, rather than leave the matter to submissions from the bar table.In this matter’s first return date in this Court it was ordered, amongst other things, that the applicant was to file and serve any affidavit material containing additional evidence relied upon, including a transcript of the Tribunal hearing, by 10 August 2009. No such evidence was filed and the applicant has adduced no evidence today in this hearing.
Consequently, the only evidence touching on the allegations made today by the applicant is that which appears in the Tribunal’s decision record.That record does not suggest to me that the Tribunal’s hearing was terminated by reason of the applicant’s ill-health, that he was denied a full hearing or that he was denied a complete opportunity to put before the Tribunal the evidence and arguments he wished it to have.
For those reasons, the matters raised today by the applicant do not disclose jurisdictional error on the part of the Tribunal.
Conclusion
As jurisdictional error has not been demonstrated, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 7 October 2009
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