SZNTE v Minister for Immigration
[2009] FMCA 1256
•23 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNTE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1256 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no jurisdictional error demonstrated by the fact that the Tribunal used evidence from one review in determining another review – s.424A of the Migration Act 1958 applies to such information – applicant before Tribunal has no general right to call, hear or cross-examine persons whose evidence may be used by the Tribunal – no s.424A(1) obligations attach to information supplied in response to a s.424A notice – the Tribunal has no obligation to send a second s.424A notice in the event that an applicant’s response to a s.424A notice is inadequate or incomplete. |
| Migration Act 1958, ss.420, 422B, 424, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v Kumar (2009) 238 CLR 448 SZIAQ v Minister for Immigration & Citizenship [2008] FCA 654 MZXGB v Minister for Immigration & Citizenship [2007] FCA 392 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 |
| Applicant: | SZNTE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1689 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 30 October 2009 |
| Date of Last Submission: | 23 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2009 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1689 of 2009
| SZNTE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. She alleges that while in China her husband was the priest for an “underground family church” and that their home was the main place of worship. As the church services increased, she and her family became known and targeted by the authorities.
The applicant claims to fear persecution in China because of her and her family’s past involvement in, and ongoing commitment to, an underground Christian church.
After her arrival in Australia on 11 December 2007, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 28 April 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 – 12 of the Tribunal’s decision (Court Book (“CB”) pages 191 – 199). A daughter of the applicant applied unsuccessfully for a protection visa at about the same time as the applicant. The parties agreed that the presiding member constituting the Tribunal for the review the subject of these proceedings also conducted the review of the daughter’s protection visa application refusal.
Primary Application
In her visa application, the applicant made the following claims:
a)she was born in Shengxue Village, Longtian Town (Fujian, China) in 1968;
b)she is part of the Han ethnic group and her religion is “underground church”;
c)she married in 1987, and has four children. One daughter currently resides in Australia and the remaining children are in China with her husband;
d)she arrived in Australia in 2007 on a Guardian Student Visa to accompany her daughter;
e)her husband is a priest in an ‘underground family church’ who spread the Gospel around local villages;
f)from 2003, the applicant’s home was the main place of worship, and as the number of visitors grew, the authorities came to know of the family;
g)in 2005, local police issued a warning to the applicant’s family that the church gatherings were disturbing the peace. During one church service, police entered the applicant’s home, shouting, beating parishioners, breaking furniture and beating the applicant’s husband unconscious before dragging him away;
h)the applicant ran away to her parents’ home in a remote mountainous area without communications, staying there for six months. Afterwards, she returned to her sister-in-law’s house where she learned about the problems that her family, in particular her husband and daughter, had suffered;
i)the applicant’s husband started preparations for her to join her daughter in Australia, with the help of church members who found an immigration agent; and
j)police and government officials now go to her home demanding to know her whereabouts from her husband and threaten to send him to gaol when he is unable to give them the information they seek.
Review application
In pre-hearing submissions, dated 30 April 2009, the applicant provided the following additional information:
a)she is a committed and practising Christian and if she returned to China she could not “dismiss them or practice [sic] quietly, she would take them to a higher level”;
b)she was very keen to participate in a water baptismal service at her church in Warrnambool and actively encouraged other members of the church to join her in the celebration; and
c)an agent assisted in arranging her departure from China and his assistance may have involved some corrupt activity. She fears that this alongside her religious beliefs may add to her risk of persecution.
A pre-hearing letter received by the Tribunal on 11 May 2009 attached the following:
a)a letter of support from Pastor Peter Greene of the Full Gospel International Church describing the involvement of both the applicant and her daughter with the church. The covering letter describes this as a letter “regarding [the applicant’s] conversion to Christianity”; and
b)undated photographs showing the applicant being baptised.
The applicant attended a Tribunal hearing held over two days
(14 May 2009 and 2 June 2009) and provided the following additional information:
a)her own family is not Christian although her husband’s is. She had converted to Christianity after marrying in 1987 but does not completely understand the Bible;
b)when she married her husband, he rarely attended church. He began preaching in 1997 following a mining incident in which church members assisted him financially and with prayers. He is still active in the church, attending various house churches to deliver sermons;
c)there were ten to twenty persons in their house church. Until 2003 the head of the church had been Pastor Chen; thereafter, her husband took over the leadership;
d)her husband mostly lives at home and currently has no employment or money, although he occasionally takes casual work on construction sites. She later stated that he also farms sea cucumbers but that this forms only a small portion of his income;
e)her husband telephoned her on 22 May 2009 advising that he had moved to Guangzhou as he no longer felt safe in Fujian;
f)on the wall of the living room in her home, there was a cross made of luminous plastic material. There had previously been a wooden cross but it was replaced after her daughter’s departure for Australia. Also on the wall she had a picture of Jesus and the twelve disciples and a calendar showing Jesus on the cross;
g)in the first session, she said that she had a bible stored in the drawer of the table in the living room (where house church members worshipped), but stated in the second session that there were three or four bibles, located in the table and elsewhere in the house;
h)the police raid in 2005 occurred at dusk on 27 March. Only her second daughter (the other applicant before the Tribunal) was present at the gathering, and seven or eight police were involved. In terms of property damage, she said that the police smashed the table and chairs as well as damaging the religious picture and cross and taking away the bibles. They arrested her husband. She also stated that she had fled the scene so she was not entirely sure of the property damage;
i)the applicant fled to her mother’s place for six months and returned to the family home around October 2005. Her husband was released from prison on 29 November 2005;
j)upon arrival in Australia, she stayed with her daughter in Sydney for three months doing “nothing” but had attended church at Padstow in Sydney two or three times. She had earlier stated that she only began attending church once she moved to Melbourne, which the Tribunal took to be a reference to Warrnambool;
k)she had not applied for a protection visa earlier, based on the advice of a migration agent who noted that she had a guardian visa; and
l)she believed in “house churches”. She did not wish to attend official churches as “there was no love” in them.
The Tribunal sent a s.424A notice to the applicant on 5 June 2009, inviting her to comment or respond in writing to potentially adverse information arising from her and her daughter’s claims and evidence. These related to her family circumstances (particularly her husband’s work and residency in Fujian), her (and her daughter’s) evidence as to their Christian practice in China, the alleged police raid at Easter 2005, evidence regarding their Christian knowledge and distinctions between practice in China and Australia, their practice in Australia, the delay in seeking refugee status, and the initial reasons she gave for being unable to return to China.
On 8 June 2009, the Tribunal received the applicant’s response. The applicant gave explanations for the perceived inconsistencies in the evidence which she and her daughter had given to the Tribunal in connection with the same matters. She also suggested that the recording of the hearing should be “listened to again using a different interpreter”, which the Tribunal stated it understood to mean that the hearing may have been wrongly interpreted.
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 applicant had given an untruthful account of her experiences and she was not a Christian. She and her family did not host a house church and there was no other association with Christians. This finding was based on the following matters:
i)the applicant gave a piecemeal and unconvincing account of her and her family’s religious practices in China. For example, the husband’s continued presence in Fujian up till May 2009 strongly suggested that he was not an underground priest who had been detained, who continued to be involved in religious activities and who therefore remained at risk of persecution;
ii)she resisted the Tribunal’s effort to obtain further detail about her family’s religious practices, and when she did give further detail – what the crucifix in the home was made of, what the religious picture on the wall showed, how many bibles were in the home and who exactly the other elders in the church were – her evidence was vague, changeable and, on significant points, at odds with the evidence given by her daughter;
iii)she had limited knowledge of Christianity;
iv)she had minimal ability to identify any differences between her religious practice in Australia and China beyond basic issues such as the use of interpreters and the existence of religious freedom in Australia;
v)the applicant arrived in Australia in December 2007 but did not apply for protection until March 2009 even though she had contacts with some English-speaking Christians in Warrnambool and her daughter has some English; and
vi)the applicant exaggerated her limited education and poor memory in order to avoid the Tribunal’s scrutiny of her claims and evidence;
b)the Tribunal did not accept that the applicant had had contact with Christian churches in Sydney as her evidence on this was vague regarding place names. Additionally, her descriptions of her introductions, contacts and transport to church were unconvincing;
c)whilst the Tribunal accepted that the applicant attended a church in Warrnambool from April 2008, that her attendance was not for the purpose of strengthening her refugee claims and that she might be interested in continuing to learn about Christianity if she returned to China, it rejected the claim that the applicant might become a Christian activist, organising or motivating others or proselytising, if she returned to China because:
i)she lacked credibility, had limited knowledge of Christianity and appeared to lack the motivation and resources which would enable her to take on any higher profile role within any church;
ii)country information referred to the large number of Christians in official and non-official churches in Fujian. The widespread tolerance of all such churches would permit the applicant to develop her interest in Christianity without any real chance of persecution; and
iii)her claim that she will choose to worship in prohibited house churches was unfounded because she had not done so in the past. Rather, she will decide what Christian churches she will attend in the future on unrelated grounds, such as where she feels welcome;
d)whilst the applicant’s daughter was also involved in the church in Warrnambool and might also wish to explore Christianity further if she returned to China, the applicant did not face any added risk from her daughter’s conduct in Australia or from any future involvement she may have with Christian churches in Fujian;
e)the Tribunal was not satisfied that there is a real chance of Convention-related persecution arising from the applicant’s past reliance on the services, corrupt or otherwise, of any migration agent in China, finding her to have been evasive about the circumstances of her departure from China;
f)the Tribunal found that it was unnecessary to have the recording of the hearing listened to again on grounds including that:
i)there were only a few occasions when the interpreter needed to clarify particular terms with the applicant and she did this. Other problems appeared to relate not to interpretation, but to the clarity and cohesion of what the applicant actually said in Chinese; and
ii)the applicant’s daughter had enough English to alert the Tribunal to any incorrect interpretations or at least mention it in post-hearing correspondence.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1. The RRT Decision is affected by jurisdictional error.
2.The RRT Decision failed to issue another s.424A letter when it found that, in response to its s.424A question on practice in China and Australia, only two of some non-specified differ assumed by the Tribunal had not been mentioned page 17 Decision.
Jurisdictional error
The allegation of jurisdictional error was not particularised and, as pleaded, lacks substance. However, based on her oral submissions, the essence of the applicant’s allegation is that it was unfair that, at her hearing, the Tribunal put to the applicant evidence given by the applicant’s daughter at her hearing and asked for comments on the inconsistencies between the two women’s evidence.
The applicant appears to complain that the Tribunal was not entitled, in her case, to use information which it learned in the course of the separate hearing of her daughter’s review application.
In written submissions filed by leave after the hearing, the Minister submitted that it is acceptable and appropriate for the Tribunal to use evidence given by one applicant in his or her review as information in another applicant’s review. The Minister referred to cases where the Tribunal relied on evidence obtained by it other than at the hearing of the particular applicant in question, such as confidential informant information: Minister for Immigration & Citizenship v Kumar (2009) 238 CLR 448; and evidence given by another protection visa applicant in separate review proceedings: SZIAQ v Minister for Immigration & Citizenship [2008] FCA 654, MZXGB v Minister for Immigration & Citizenship [2007] FCA 392.
Cases such as those cited by the Minister demonstrate that the mere fact that the Tribunal uses evidence from one review in determining another review does not amount to jurisdictional error. As Hayne J observed in Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 563 [180]:
The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual’s application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications.
Although his Honour was writing in the context of an allegation of bias, those comments are important and relevant here as they highlight the fact that as an arm of the executive, the Tribunal can approach its task in ways unavailable to courts (s.420(2)). As an inquisitorial body, the Tribunal may get any information it considers relevant (s.424(1)). Consequently, to the extent that the applicant alleges that the Tribunal erred because it made reference to or relied on the evidence given at her daughter’s review hearing, the ground is not made out.
However, that is not an end to this allegation. Another matter which is relevant is the manner in which the provisions of div.4 of pt.7 of the Act dictate how evidence obtained in other review proceedings should be dealt with and whether the Tribunal observed the requirements of that division.
The provision of div.4 of pt.7 which is relevant to this case is s.424A. Subject to exceptions not presently relevant, that section requires that if a Tribunal comes into possession of information which may be the reason or part of the reason for affirming the decision under review, it must notify the applicant of that information and give the applicant an opportunity to address it. The s.424A notice which the Tribunal served on this applicant relevantly notified her of information which she had provided and which had been gleaned at her daughter’s review hearing. It also invited her to comment on and respond to that information. This was the step which the Act required the Tribunal to take. Subject to the second allegation made in the applicant’s application, it is apparent that the Tribunal discharged its s.424A obligation and that no jurisdictional error is demonstrated in this connection.
As an alternative to an allegation that the Tribunal should not have used information obtained in other proceedings, the applicant may have been arguing that the Tribunal should have called the applicant’s daughter to give evidence in the applicant’s review hearing. Such a submission suggests that the applicant was entitled to hear her daughter give evidence or perhaps to cross-examine her. If so, the submission misconceives the role and procedures of the Tribunal.
The Tribunal is not a court employing adversarial procedures where parties have a right to call their own witnesses and to cross-examine witnesses called by other parties. The Tribunal is not a contradictor of an applicant’s case; its role is to inquire into whether the decision of the Minister’s delegate should be affirmed or not. As already noted, in exercising that power the Tribunal may get such information as it considers relevant. It is not obliged to take evidence from any particular witness, even if an applicant requests it: s.425(3); Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908. In such an inquisitorial process, an applicant’s rights are governed, not by adversarial procedures and the other rights inherent in a trial, but by the rules of natural justice as they apply to administrative action. In the context of the Tribunal, the natural justice hearing rule has been codified in the provisions of div.4 of pt.7: s.422B. Relevantly, an applicant is to be given an opportunity to address information and issues which may be, respectively, adverse to or dispositive of his or her review application. He or she has no general right to call, hear or cross-examine persons whose evidence is or may be used by the Tribunal in reaching its decision.
There being no obligation on the Tribunal to call any particular witness, to examine any particular witness in the presence of the applicant or to permit the applicant to cross-examine a witness, the fact that the Tribunal did not call the applicant’s daughter to give evidence in the applicant’s review hearing does not amount to jurisdictional error.
Breach of s.424A
The second allegation in the application is not easy to understand. It appears to be that the Tribunal should have notified to the applicant, pursuant to s.424A of the Act, that in her response to the Tribunal’s s.424A notice she had referred only to two differences between Chinese and Australian religious practices.
Differences in religious practice were referred to by the Tribunal in its s.424A notice under the heading “Knowledge of Christianity” where it said:
· [The applicant] spoke about some aspects of Christianity (the Lord’s Prayer, Christ’s birth, etc.) but did not appear to know about other aspects (the events leading up to Easter). This was particularly so at the first hearing, but was not confined to that. [The applicant’s daughter] appeared to speak knowledgeably about numerous aspects of Christianity.
· Neither [the applicant] nor [the applicant’s daughter] could identify with ease any differences between church services and teachings between China and Australia, apart from some logistical aspects (eg. the use of interpreters). [The applicant] named 4 hymns sung only in China. [The applicant’s daughter] could complete their names, but recalled that they were in fact sung in both places. (CB 177)
This quotation demonstrates that the information relevantly relied on by the Tribunal was included in the s.424A notice. To the extent that the Tribunal had any s.424A obligation in respect of the applicant’s own evidence or the discrepant evidence given by the applicant and her daughter concerning their religion it discharged that obligation by sending that notice. Having done so, it was not required to serve a further s.424A notice in respect of the matters contained in the applicant’s response. Not only might such an obligation generate an endless correspondence, which prospect itself suggests that as a proposition it is erroneous, but s.424A(3)(b) provides that no further notice under the section would be required. Section 424A(3) provides for exceptions to the obligation to serve a notice pursuant to the section. The information provided by the applicant in her response to the Tribunal’s s.424A notice fell within the scope of s.424A(3)(b) with the consequence that no notice obligations under the section attached to that information.
Further, the Tribunal has no obligation to send a second s.424A notice in the event that an applicant’s response to a s.424A notice is inadequate or incomplete. The Tribunal’s obligation is to give an applicant an opportunity to address information, not to ensure that he or she addresses it in any particular way or well.
No breach of s.424A has been proved.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 23 December 2009
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