SZNTO v Minister for Immigration
[2009] FMCA 1156
•25 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNTO v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1156 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – s.425 of the Migration Act 1958 does not require the Tribunal to advise an applicant of issues first raised by that applicant when before the Tribunal. |
| The Constitution, s.75 Federal Magistrates Act 1999, s.18 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 |
| Applicant: | SZNTO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1733 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 November 2009 |
| Date of Last Submission: | 11 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Micah Legal Services |
| Counsel for the First Respondent: | Mr J. Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1733 of 2009
| SZNTO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. He claims that following his arrival in Australia on 23 November 2008 he converted to Christianity.
The applicant claims to fear persecution in China because of his religion. He alleges that if he were to return to China, he would evangelise.
The applicant lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 17 March 2009. He 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’s 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 page 4 of the Tribunal’s decision (Court Book (“CB”) page 65) and in the applicant’s visa application (CB1ff). Relevant factual allegations are summarised below.
Primary application
In his visa application, the applicant claimed the following:
a)he was a practitioner of Falun Gong;
b)in 2003 he was detained for four months by the Shandong Liaison Office and an officer extorted 15,000 yuan from him;
c)in December 2005 he was arrested and detained for two months by the Shandong Police Station and the police extorted 12,000 yuan from him;
d)he bribed a powerful officer to help him travel to Australia; and
e)if he returns to China he will be gaoled.
Review application
At the Tribunal hearing, the applicant gave the following evidence:
a)he was not really a practitioner of Falun Gong;
b)he regretted claiming that he was, but his lawyer had advised him that if he did not make such a claim then he would have no chance of remaining in Australia;
c)because of financial difficulties, he sought to travel to Australia as this was the “only hope for his family”. He paid an agent (with money borrowed from family and friends) to arrange his trip to Australia;
d)one of his son’s classmates had given him a bible, which led to an interest in Christianity;
e)on arrival in Australia, the applicant began attending a Hillsong Church in Chatswood, where services were conducted in Mandarin and English;
f)he was baptised at this church and presented the Tribunal with the original of his baptismal certificate;
g)he would evangelise if he returned to China; and
h)he feared persecution on this basis.
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)in light of the applicant’s statement that he had lied about being persecuted in China on the basis that he was a Falun Gong practitioner, the Tribunal disregarded the applicant’s claims made in his visa application;
b)whilst the Tribunal accepted that the applicant had adopted Christianity in Australia other than as a means to strengthen his claim to protection, it did not accept that he would be persecuted by reason of his Christianity if he returned to China because:
i)he did not present any evidence nor did the Tribunal have before it any information that suggested that simply being a Christian led to persecution by the Chinese Government, although it accepted that from time to time certain Christian groups do suffer harassment and worse, and that this occurs in some parts of the country more than in others; and
ii)the applicant was not a practising Christian in China and did not indicate that the form or location of his practice would attract adverse attention from the authorities were he to return.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
(1)The Second Respondent (the Tribunal) failed to comply with section 425 of the Migration Act.
(2) The Tribunal failed to comply with s.430(1)(d) of the Migration Act.
Breach of s.425
The allegation in the amended application that the Tribunal breached s.425 of the Act was particularised as follows:
(a)Failure to give the applicant an opportunity to give evidence and present arguments as to the form that his proselytising may take were he to return to China (that being an “issue” in the review), and
(b)Why that may lead to his being persecuted.
Section 425 relevantly provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review …
In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 it was held that, by virtue of s.425, a review applicant before the Tribunal is entitled to be aware of the issues which may be determinative of his or her review. These issues are described in s.425(1) as “the issues arising in relation to the decision under review”. In this regard, if an applicant’s claims before the Tribunal are the same as those before the Minister’s delegate, the applicant is entitled to assume that the issues which the delegate considered determinative will also be “the issues arising in relation to the decision under review” for the purpose of the Tribunal’s review: SZBEL at 163 [35]. However, the Tribunal is not confined to the issues which the delegate considered and if the Tribunal identifies additional issues, it must advise them to the applicant: SZBEL at 165 [43], [44].
The applicant submitted that the issue central to the question of whether he has a well-founded fear of persecution for reasons of his Christianity was whether the persecution of Christians in China depended on the form and location of their practice of Christianity and the manner in which they would evangelise. He submitted that the manner and form of his intended practice of Christianity in China, including his evangelism, was left unexplored by the Tribunal, observing that there was no evidence before the Tribunal, whether proffered by him or sought by the Tribunal itself, which demonstrated the manner in which he would undertake evangelising activities in China were he to return there. The applicant submitted that he could not have known that his foreshadowed evangelism would have been an issue determinative of his review. His argument was that the Tribunal’s decision was affected by jurisdictional error as a result.
In this case it is significant that the claims which the applicant made to the Tribunal were completely different from those made to the Minister’s department and on which the delegate made his decision to refuse to grant a protection visa. Consequently, none of the matters which the delegate considered to be determinative were of any relevance at the Tribunal review stage and no assumption could be made that previously determinative issues might also be determinative before the Tribunal.
As already noted, the purpose of s.425 is to provide an applicant with an opportunity to address matters of potentially determinative significance by requiring the Tribunal to ensure that the applicant is aware of what those issues are. However, that obligation does not apply to issues which an applicant himself or herself raises for the first time before the Tribunal. As Edmonds J said in SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14]:
Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. Nor does the Tribunal have a duty under s 425 to inform an applicant that because the claims are now framed on the basis of a different Convention ground it will be required to consider whether the evidence supports the new claim.
Consequently, the Tribunal had no duty under s.425 to identify to the applicant the potential determinative significance of his claimed intention to involve himself in evangelism were he to return to China, this being an issue which the applicant himself had raised for the first time as part of his Tribunal review proceedings.
In any event, the question of whether the applicant’s evangelism would bring him to the adverse attention of the Chinese authorities was directly related to the objective element of the Convention test and its significance as an issue was made plain during the course of the Tribunal hearing. The transcript of that hearing contains the following exchange:
Q18… But the only decision I can make is whether or not you have a well-founded fear of persecution for one of the reasons I mentioned or not. So I’ll ask you directly, do you believe there is any reason why if you were to return to China you would be persecuted?
A(I)If I go back I will evangelise and ‘cause in China there is no democracy. Chinese government, regardless of what kind of religion you are in, if the power of certain religion is getting big, then the government will be, will be alert and scared. As the people who does evangelising in China increases, there will be more conflict between these people and government and the government will end up suppressing them.
From this passage it is apparent that the applicant can have been in no doubt that his claimed intention to evangelise in China was an issue which might be determinative of his review application. After all, he raised it as the basis of his claim to fear persecution.
For these reasons, no breach by the Tribunal of its obligations under s.425 has been disclosed.
Breach of s.430(1)(d)
The allegation that the Tribunal breached s.430(1)(d) of the Act was particularised as follows:
(a)Failure to refer to the evidence or other materials upon which the following findings of fact, was based.
… although there is some truth in the applicant’s statement that the Chinese Government appears to fear any movement which may be or become an alternative centre of power in the country, …, the applicant did not present any evidence that Christians are ipso facto perceived by the Chinese authorities in that way. Information available to the Tribunal does not suggest that this is the case, although certain Christian groups do suffer harassment and worse from time to time and in some parts of the country more than in others.
Section 430(1) provides:
430 Refugee Review Tribunal to record its decisions etc.
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
The applicant conceded that a breach of s.430 does not constitute jurisdictional error. Instead, he sought an order that the Tribunal identify the “information available to the Tribunal” to which it made reference in para.31 of its decision, part of which is quoted in the above particulars.
The applicant submitted that it was appropriate in a case of failure to provide reasons in the fashion required by s.430(1) that the Court order the Tribunal to meet that statutory obligation, citing Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. He submitted that, relevantly, he was entitled to have a full exposition of the evidence upon which the Tribunal relied when reaching its various findings of fact. The applicant submitted that were the Tribunal to comply fully with its obligations under s.430(1), it could be possible that the “information available to the Tribunal” did not, in fact, support the statement made in the Tribunal’s decision record with the result that jurisdictional error might thereby be disclosed.
The applicant submitted that the Court had jurisdiction to make an order that the Tribunal set out in its reasons all the matters specified in s.430(1) because s.476(1) of the Act gives this Court the same original jurisdiction in relation to migration decisions as the High Court has under s.75(v) of the Constitution. He also referred to s.18 of the Federal Magistrates Act 1999, which provides this Court’s associated jurisdiction.
In response, the Minister submitted that the Tribunal’s reasons are a privative clause decision under the Act. Section 474 relevantly provides:
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
The Minister submitted that s.474(3)(g) was applicable to this case. For the reasons set out below, it is not necessary to deal with this argument. However, that said, it is difficult to see how the failure of a Tribunal decision to refer to particular evidence would, without more, amount to “doing or refusing to do” an act or thing or would be anything more than an omission. Although omissions can be deemed by statute to amount to acts, s.474 is not drawn in such a way as to achieve that outcome. Nor is an omission a refusal, which is a definite act even if in a negative sense.
Unless the “information available to the Tribunal” referred to in the Tribunal’s decision was evidence on which the Tribunal’s “findings of fact were based”, s.430(1)(d) imposes no obligation on the Tribunal to refer to it in its reasons. To determine whether the “information available to the Tribunal” had to be cited in the Tribunal’s reasons, it is necessary first to identify any relevant findings of fact. The only relevant finding of fact is that set out in para.33 of the Tribunal’s Decision Record where it said:
I find that the applicant does not have a well-founded fear of persecution in China for a Convention reason.
This finding was not based on “information available to the Tribunal” but on the absence of such information. This is revealed by the Tribunal’s statement in the preceding paragraph:
… I have no substantiated evidence before me to enable me to conclude that there is a real chance that the applicant would be persecuted for reason of his religion or for any other Convention reason should he return to China in the foreseeable future.
It was this lack of evidentiary substantiation of the applicant’s claim to fear persecution in China to which the Tribunal was alluding when it referred to the “information available to” it. The relevant passage is:
… the applicant did not present any evidence that Christians are ipso facto perceived by the Chinese authorities [as an alternative centre of power]. Information available to the Tribunal does not suggest that this is the case …
The Tribunal was not making a finding contrary to the applicant’s argument. It was simply saying that the information before it provided insufficient evidentiary support for the proposition that Chinese Christians might become an alternative centre of power which would attract the adverse attentions of the Chinese government. Consequently, far from being evidence on which a finding of fact was based, the “information available to the Tribunal” was expressly inadequate to ground relevant factual findings. As a result, the Tribunal did not have to refer to it in its reasons.
Therefore, I find that the Tribunal did not breach its obligations under s.430(1)(d).
Conclusion
Neither jurisdictional error nor a breach of the Tribunal’s obligations under s.430(1)(d) have been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 25 November 2009
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