SZNSY v Minister for Immigration

[2009] FMCA 1078

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNSY v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1078

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 422B

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Chand v Minister for Immigration (unreported, Full Federal Court, 7 November 1997)
Minister for Immigration v Durairasingham (2000) 168 ALR 407
Minister for Immigration v SZJGV [2009] HCA 40
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59
Singh v Minister for Immigration [2001] FCA 389
Srey v Minister for Immigration (2003) 134 FCR 308
SZJGV v Minister for Immigration [2009] FCAFC 105
SZJMH v Minister for Immigration [2008] FCA 270
SZLZU v Minister for Immigration & Anor [2008] FMCA 831
SZKRR v Minister for Immigration [2008] FCA 145

Applicant: SZNSY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1652 of 2009

Judgment of: Driver FM

Hearing date: 2 November 2009

Delivered at: Sydney

Delivered on: 2 November 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Court directs that the applicant is to pay the setting down fee of $447 within seven days or apply for a waiver from the Court registry.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1652 of 2009

SZNSY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 15 June 2009.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of religious persecution.  Background facts relating to the applicant’s claims and the Tribunal decision on them are conveniently summarised in the Minister’s written submissions filed on 26 October 2009.  I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 1 through to 8 of those written submissions:

   On 25 February 1996, the applicant arrived in Australia (court book “CB” 13). 

   On 17 May 1996, he lodged an application for refugee status with the Department of Immigration and Ethnic Affairs ("Department") pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) (CB 1 to25).

   On 9 August 1996, a delegate of the Minister refused to grant a protection visa (CB 28 to 35).  However, as a result of an error of the kind identified in Srey v Minister for Immigration (2003) 134 FCR 308, the applicant was not properly notified of the decision and was re-notified of the decision on 10 March 2009 (CB 38 to 39).

   On 11 March 2009, the applicant applied to the Tribunal seeking review of the delegate’s decision and appointing an authorised recipient (CB 40 to 43).

   On 25 March 2009, the Tribunal invited the applicant to attend a hearing of the Tribunal and informed the applicant by that letter that it was not able to make a favourable decision based solely on the information before it (CB 47 to 49).

   On 21 May 2009, the applicant requested that the hearing be postponed (CB 54 to 57), a request to which the Tribunal acceded (CB 58 to 59).  On 9 June 2009, the applicant attended a hearing of the Tribunal at which he gave oral evidence and presented arguments, with the assistance of a Korean interpreter.

   On 16 June 2009, the Tribunal sent the applicant its decision made on 15 June 2009 (CB 71 to 86).  That decision affirmed the decision of the delegate not to grant the visa.  

   The Tribunal's decision

   The Tribunal:

   a)Set out the various discrepancies and problems regarding the applicant’s identity and nationality (CB 82 at [67] to [68]) but gave the applicant the benefit of the doubt and accepted that his name was correct and that he is a Chinese citizen who was born in Jilin Province (CB 82 at [68]).

   b)Accepted that inability to obtain travel documentation in one’s own name could indicate a need to evade detection in leaving one’s country and that in such circumstances it might be necessary to obtain a false passport.  However the Tribunal also reasoned that it was equally likely that one’s motives for doing so could include an attempt to gain an Australian visa in circumstances where one would not be given.  The Tribunal was not satisfied that the fact the applicant used a false passport to leave China meant it should accept that this was the only way he could leave China (CB 82 at [69]).

   c)Did not accept that the applicant was a credible witness. The Tribunal considered the applicant’s account of his parents’ activities in China and his own practice of Christianity was vague and unclear (CB 83 at [74]) to [75]).  The Tribunal went on to note that notwithstanding the effluxion of time since he left China “it would be reasonable to expect him to speak of these Christian activities with some degree of familiarity and with some background detail”: (CB 84 at [76]).  As a result the Tribunal considered that this raised doubts about the credibility of the applicant’s claims to have been involved with illegal activities in China (CB 84 at [76]). 

   d)Found its doubts were reinforced by the applicant’s implausible evidence that he did not report to police on a number of occasions, that he would be at risk of harm because his parents were counter-revolutionaries and that his son had been unable to locate employment because his father is ‘missing’ (CB 84 at [77]). 

   e)Was not satisfied that the applicant was involved in illegal Christian activities in China or that he was harmed by the authorities (CB 84 at [78]).

   f)Considered the evidence of the two witnesses at the hearing, including the Pastor. The Tribunal noted that the evidence of the Pastor, that the applicant had attended the church in October or November 2008, was inconsistent with the letter from Ms Choi which stated that the applicant had attended the church for many years. As a result the Tribunal was not satisfied that any weight could be placed on Ms Choi’s letter (CB 84 to 85 at [80]). 

   g)Was satisfied that the applicant had regularly attended church at Dee Why since late 2008 and that he was baptised in April 2009. However, as a result of the Tribunal’s finding that the applicant was not involved in Christian activities in China, the timing of the commencement of his attendance at church in Australia and his baptism the Tribunal was not satisfied that the applicant’s attendance at the church services was undertaken for any reason other than to strengthen his claim to be a refugee. As a result the Tribunal disregarded this conduct purportedly in accordance with s.91R(3) of the Migration Act (CB 85 at [81]).

   h)Considered the applicant’s claim made at the Tribunal hearing that he would be harmed if he returned to China because he would be questioned and he left China illegally on a false passport. In response to this claim the Tribunal noted the applicant’s evidence at the hearing that he attended the Chinese Consulate to renew his passport because he wanted to return to China to see his son. The Tribunal considered that this evidence cast doubt on the applicant’s claim that he would be interrogated on arrival in China: (CB 85 at [82] to [83]).

   i)Was not satisfied that the applicant was a person towards whom Australia owed protection obligations (CB 85 to 86 at [86]).

2. These proceedings began with a show cause application filed on 13 July 2009.  The applicant continues to rely on that application.  The grounds in the application are summarised accurately in the Minister’s written submissions, and I adopt, with minor amendments, paragraph 9 of those submissions:

   The applicant raises the following 3 grounds of review, which can be summarised as follows:

   1.RRT said my evidence was not consistent.  I could not apply for my own passport.  I had to use other’s passport to leave China.  I paid money to get my Chinese passport.  RRT did not trust me.  All I said is truth.

   2.I am not good at speaking. I just told the goodness of God to others.  I did not preach.  RRT member thought I preach Gospel and a Pastor.  I am a Christian.  I do not lie.  I guarantee with my dignity, I do not understand why RRT concluded that I am a dishonest person.  I am deeply offended.

   3.I was not considered fairly by RRT.  They did not weigh my evidence both here an in China.  I did not go to church to strengthen my refugee claims.  I serve God with my life.

3. The application was supported by a short affidavit filed on the same day, which I received as a submission. 

4. I have before me as evidence the court book filed on 24 August 2009. 

5. The applicant’s oral submissions focused on his protection visa claims, as did the grounds in the application to the Court.  I explained to the applicant that the merits of the Tribunal decision are beyond the scope of this proceeding. 

6. Counsel for the Minister attempted in her written submissions to identify relevant legal arguments arising from the grounds in the application, and dealt with them in paragraphs 10 through to 18 of the written submissions.  I agree with and adopt for the purposes of this judgment, with minor amendments, paragraphs 10 through to 16 of the submissions:

   The first and second grounds simply challenge the Tribunal’s factual findings regarding the applicant’s departure from China.  The Tribunal concluded that the reason advanced by the applicant as to why he had used a false passport to depart China was but one possible explanation for the use of a fraudulent document.  The conclusion reached by the Tribunal was open to it and, whilst it is understandable the applicant is displeased that the Tribunal did not accept him on this point, that does not give rise to a jurisdictional error.  By the second ground, the applicant also takes offence at the fact the Tribunal did not find him to be a credible witness.  Such a finding was open to the Tribunal and the question of credibility is one entirely for it: Minister for Immigration v Durairasingham (2000) 168 ALR 407.

   The third ground of review contains allegations that the applicant was denied procedural fairness, the Tribunal failed to give weight to evidence and seeks to take issue with the s.91R(3) finding.

   In respect of the general allegation of procedural fairness, the Tribunal’s decision was one to which s.422B of the Migration Act applies and the Tribunal complied with its procedural obligations pursuant to the Migration Act. Moreover, the Tribunal also granted the applicant an adjournment of the hearing for medical reasons.

   As to the question of weight, it is a matter exclusively within the Tribunal’s jurisdiction and a failure to accord weight to evidence does not give rise to jurisdictional error per se.  As their Honours Gummow & Hayne JJ stated in Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197]:

   In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.

   In Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Federal Court, 7 November 1997) per Von Doussa, Moore and Sackville JJ, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at pages 281 to 282, said (at page 11):

   The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.

   A Tribunal is equally entitled to place no weight on documents:  see Re Minister For Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ and [49] per McHugh J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J; and SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J.

   The evidence upon which the Tribunal declined to place weight was the letter of Ms Choi which gave evidence that the applicant had worshipped at a church in Dee Why for many years.  The basis for this decision was the inconsistency of the substance of the letter with the oral evidence given by witnesses at hearing that the applicant had only practised since 2008.  Such reasoning was plainly open and does not give rise to a jurisdictional error. 

7. There are two remaining issues. The first is whether the Tribunal breached s.91R(3) of the Migration Act in relation to its analysis of the applicant’s conduct in Australia. Secondly, there is an issue whether the Tribunal failed to consider in any meaningful way an element or integer of the applicant’s claims concerning a fear of being questioned regarding his absence from China for many years and the manner of his leaving.

8. In relation to the first issue, the Tribunal’s reasons are set out in paragraphs 79 through to 81 of its decision (CB 84-85):

   The Applicant claims to have attended churches in Campsie and Belmore on some occasions after his arrival in Australia in 1996 in Australia in August 1998.  He claims that he then began attending another church, the Yeong Seong Korean Baptist Church in Dee Why.  He was baptised into this church in April 2009.

   The evidence of two of the witnesses at the hearing, including the Pastor of the church in Dee Why, was that the Applicant began regular attendance there in October or November 2008 and that he had taken up Bible study.  The Pastor also gave evidence that the first time he met the Applicant was in March 2008.  I note that this evidence is in conflict with the letter submitted to the Tribunal from ms Jong Suk Choi which claims that ‘[The applicant] has been attending Young Seung Korean Baptist church in Deewhy for many years and has built his reputation amongst Christian community as a honest and religious member of the congregation.’  Given the oral evidence of the witnesses I am not satisfied that any evidentiary weight can be placed on Ms Choi’s letter.

   On the information before the Tribunal I accept that the Applicant has been attending the Dee Why church on a regular basis since late 2008 and that he was baptised there in April 2009.  However, given my finding that he was not involved in Christian activities while he lived in China, and given the timing of his commencement of regular church attendance (some thirteen years after his arrival in Australia) and his baptism (the month before he was first due to attend a Tribunal hearing) I am not satisfied that his conduct in Australia and beginning and continuing an involvement with organised Christian [worship] and becoming baptised has been undertaken otherwise than for the purpose of strengthening his claim to be a refugee. Consequently, as required by s.91R(3) I have disregarded this conduct in Australia in assessing his claim to fear persecution in China.

9. The Tribunal’s approach was entirely consistent with the judgment of the Full Federal Court in SZJGV v Minister for Immigration [2009] FCAFC 105, which the Tribunal was obliged to apply at the time of its decision. Since then, a majority of the High Court has found[1] that s.91R(3) of the Migration Act does not prevent a decision-maker from taking into account conduct by an applicant in Australia, even if that conduct was engaged in solely for the purpose of enhancing protection visa claims, where the conduct did not achieve its intended purpose. In other words, such conduct may be taken into account in order to support an adverse credibility conclusion. However, there is nothing in the decision of the High Court which imposes on a decision-maker any obligation to take such conduct into account in drawing credibility conclusions. Further, there was no need for the Tribunal to take into account the applicant’s conduct in Australia to support the adverse credibility conclusions already drawn by the Tribunal on the basis of the applicant’s and other evidence.

   [1] Minister for Immigration v SZJGV [2009] HCA 40

10. I conclude that the Tribunal did not fall into jurisdictional error by reason of its application of s.91R(3). Even if I were wrong in that conclusion, I would nevertheless withhold relief in the exercise of discretion because, if the applicant’s conduct had been taken into account, the outcome would necessarily have been the same.

11. The other issue is whether the Tribunal erred in considering the applicant’s claim to fear harm in China by reason of his long absence and his irregular departure.  The Tribunal’s reasoning on that issue is contained in paragraphs 82 to 84 of its decision (CB 85):

    The Applicant also claimed at the hearing that he would be harmed if he returned to China because he would be questioned by the authorities as to why he had been absent from the country for twelve or thirteen years.  He added to this later in the hearing by claiming that he had left the country illegally, using a falsified passport obtained by a friend named …, and that the authorities would question him about this since there would be no record of his having left the country in his own name.

    Having considered this claim I am not satisfied that it is consistent with the Applicant’s own evidence at the hearing that he had submitted his Chinese passport (which, even though it was fraudulently altered, bore his own name, photograph and biographical details) to the Chinese consulate in Sydney for renewal.  His reason for doing this, he claimed, was that he intended to make a return visit to China to see his son.  He was unable to do so, however, because the Consulate detected the forgery and retained the passport.  If this is true it casts strong doubt over the Applicant’s claim to fear that he would be detained and interrogated on arrival in China about the circumstances of his departure, given his other claim that he left China using the passport in the name of … .  It also casts doubt on his claim to fear that he would be questioned about his extended absence from China.

    Having considered the information before the Tribunal I am not satisfied that the Applicant genuinely fears that he would be questioned on arrival in China about his absence or about the circumstances in which he left the country.

12. It is not clear to me whether the Tribunal reasoned that the applicant’s story about the confiscation of his passport by the Chinese consulate in Sydney was a fabrication or whether the Tribunal accepted the fact but found that the applicant had no genuine fear of harm as a result.  If the former, then I have no difficulty with the Tribunal’s approach.  If the latter, then I do have a difficulty because it does not appear to me that the Tribunal engaged in a sufficiently active intellectual process in dealing with the applicant’s claim[2]. 

    [2] Singh v Minister for Immigration [2001] FCA 389

1. The applicant’s claim was that he had left China illegally using a false passport but one which was in his own name and carried his own photograph.  Having succeeded previously in the use of that passport, it was reasonable to conclude that the applicant had no fear of using it again and attempting to renew it.  However, the applicant asserted that the forgery was detected at the Chinese consulate and that the passport was confiscated.

2. The Tribunal needed, in order to engage with that claim, to consider whether the applicant had a well-founded fear of harm following the confiscation of his passport upon the detection of the fraud.  Tribunals, in previous cases, have considered that issue in some detail.  For example, in SZLZU v Minister for Immigration & Anor [2008] FMCA 831[3], the Tribunal had considered carefully the risk faced by an applicant who returned to China undocumented.  The Tribunal found, on the basis of country information available to it, that persons returning to China undocumented could expect to be detained and questioned and that they might be fined.  I note in passing that a few minutes’ internet research tells me that under Article 17 of China’s passport law a person obtaining a passport by fraudulent means is liable to have it confiscated and declared invalid and may be subject to a fine of not less than 2,000 yuan but not more than 5,000 yuan.

   [3] See in particular [23]-[27]

3. In my view, in order to deal with the applicant’s claim the Tribunal needed first to consider whether the factual assertions were true and if so, whether the applicant had a well-founded fear of harm as a result.  The failure by the Tribunal to make a clear finding on the truth of the claim and the failure by the Tribunal to engage adequately with the consequences if the claim was true, in my view, constitutes a jurisdictional error.  However, I will withhold relief in the exercise of discretion for the following reasons. Decision-makers have consistently found that Chinese passport and border control laws, including the criminal law, are non-discriminatory and are laws of general application.  Further, having rejected the applicant’s claims of past harm, on the basis of his religion, there would have been no reason to suppose that there was any conceivable basis for the discriminatory application of the law in relation to the applicant.  It follows, in my view, that even if the Tribunal had engaged properly in the consideration of this claim by the applicant the outcome would have been the same. 

4. No doubt that is an issue which the Minister’s Department could consider further before any compulsory removal of the applicant from Australia. 

5. I will order that the application be dismissed. 

6. In consequence of the dismissal order, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claimed to be impecunious but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  3 November 2009