SZNWN v Minister for Immigration

[2009] FMCA 1054

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNWN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1054

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 427(1)(d); 474; pt.8 div.2

Minister for Immigration and Citizenship v SZLFX (2009) 258 ALR 448
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZNWN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2130 of 2009

Judgment of: Emmett FM

Hearing date: 21 October 2009

Date of Last Submission: 21 October 2009

Delivered at: Sydney

Delivered on: 29 October 2009

REPRESENTATION

Applicant appeared on her own behalf

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Ms F. Edwards, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2130 of 2009

SZNWN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 August 2009 and handed down the same day.

2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Catholic faith (“the Applicant”).

3. The Applicant arrived in Australia on 28 July 2007 having departed legally from Chang Li International Airport on a passport issued in her own name and a student visa which was cancelled on 7 November 2008 pursuant to s.137J of the Act.

4. On 2 June 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 18 June 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.

6. On 23 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 4 August 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.

8. On 31 August 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by the Chinese authorities by reason of her attendance of an illegal Catholic church in China known as “the Family Church”.

2. The Applicant claimed her mother became a Catholic in 2006 and she herself started attending church in 2006 at the age of sixteen.

3. The Applicant claimed that in January 2007 her mother was detained by the Public Security Bureau (“the PSB”) for three hours and interrogated. Following her release, the Applicant claimed her mother was questioned at her shop about previous activities opposing tax increases and accused of belonging to an illegal church. The Applicant claimed she and her mother continued to attend the illegal church. The Applicant claimed she and her mother could not be baptized in China because the Family Church did not have a priest.

4. In July 2007, the Applicant and her mother travelled to Sydney on student and student guardian visas. The Applicant claimed she only completed one year of study in Australia due to financial difficulties but in mid 2008 decided not to return to China.

5. In June 2008, the Applicant and her mother moved to Scone and found work. The Applicant claimed she and her mother regularly attended church in Scone but “The priest did not speak our language so I could not undertake the study lessons” and “There was no-one who could assist as an interpreter” so the Applicant and her mother could not be baptized.

6. In November 2008, the Applicant’s mother applied for a protection visa, but the Applicant claimed she believed her student visa was valid until December 2008 at which time she intended to apply for a new student visa.

7. In March 2009, the Applicant was detained and claimed that it was then that she found out her visa had been cancelled in October 2008. The Applicant applied to the Migration Review Tribunal for review of the decision to cancel her student visa and stated that only after the Migration Review Tribunal’s refusal did she decide to apply for a protection visa.

8. Since her detention in March 2009, the Applicant claimed she had regularly attended Catholic church meetings in Villawood detention centre.

9. The Applicant claimed she cannot live anywhere else in China, as her relatives are in Fujian. She claimed she would have no religious freedom and will fear arrest and detention for her attendance of the Family Church which she would continue to attend if she were to return.

The Delegate’s decision

1. On 15 June 2009, the Applicant attended an interview with the Delegate.

2. On 18 June 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 23 June 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. The Applicant provided further documents in support of her application.

3. On 29 June 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 16 July 2009 to give oral evidence and present arguments.

4. On 16 July 2009, the Applicant attended the Tribunal hearing and gave evidence. Also present at the hearing were the Applicant’s representative and an observer.

5. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

6. The Tribunal found the Applicant was not a witness of truth.

7. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:

   “The Tribunal was not satisfied that the applicant’s evidence was consistent with a person who was genuinely committed to participating in Christian worship. The Tribunal arrived at this conclusion after identifying a lack of knowledge, and certain confusions and inconsistencies in the applicant’s evidence. This conclusion was reinforced by the applicant’s long delay in seeking protection, with the Tribunal not accepting the applicant’s explanation that she did not realise that her student visa had been cancelled. Accordingly, the Tribunal rejected the applicant’s claims to have been a member of an illegal underground Church in China.

   The Tribunal also separately addressed each aspect of the applicant’s claimed Christian conduct in Australia. The Tribunal did not believe that the applicant had attended Mass at St Mary’s Cathedral when she lived in Sydney. Accordingly this conduct did not attract the operation of s 91R(3) of the Act.

   The Tribunal accepted the applicant had attended Church in Scone, but found that this was motivated out of a sense of obligation because it provided a supportive atmosphere for her, and may have occurred out of a sense of obligation. The Tribunal found that this conduct was not motivated in order to strengthen the applicant’s claim to be a refugee. Accordingly, this conduct did not attract the operation of s 91R(3) either. The Tribunal was not satisfied that the church attendance in Scone indicated that the applicant was a Christian or would practice Christianity upon her return to China.

   In relation to the applicant’s attendance at Church in the Villawood detention centre, the Tribunal accepted that the applicant “may attend” services at Villawood. However, the Tribunal disregarded this conduct under s 91R(3), finding that it was not satisfied that the applicant was engaging in this conduct other than for the purposes of strengthening her claims to be a refugee.

   The Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.”

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 17 September 2009, the Applicant attended a directions hearing before this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which she may wish to rely was verified by affidavit. On that occasion it was explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a legal mistake going to the jurisdiction of the Tribunal.

3. At the directions hearing, the Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided to the Applicant, headed in her own language, the contact details of legal services providers and interpreting and translation services.

4. At the commencement of the hearing, the Applicant confirmed that she had filed no further document in support of her application, including any evidence by way of affidavit or submissions. The Applicant also confirmed that she relied on the ground contained in the application for judicial review, filed on 31 August 2009, as follows:

   “People who are the subject of a complaint to the PRC authorities and who lack the ability to affectively respond to the applications involvement in pro democracy movement in China”

5. The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of the application generally. It is not clear what the ground is intended to allege by way of jurisdictional error. The Applicant was unable to make any meaningful or relevant submission in support of the ground. When I asked the Applicant what she meant by the ground, she proceeded to repeat her primary claims. I explained to the Applicant that this Court is concerned only with whether the decision of the Tribunal is affected by a mistake that goes to its jurisdiction. The Applicant responded that the Tribunal asked lots of questions about her and her mother’s application and that she received unfair treatment from the Tribunal.

6. When I asked her what was the unfair treatment she received she said that it was in part because she was not believed and in further part because the Tribunal asked her and her mother the same questions about explaining why she and her mother had given inconsistent evidence in respect of similar assertions. I asked the Applicant why that was unfair, that the Tribunal should ask her to explain the inconsistencies in the statements, and the Applicant responded that a legal adviser had told her that the Tribunal should not put the same questions to her and her mother and must consider her and her mother’s applications separately. Such a complaint is misconceived.

7. The Refugee Review Tribunal considered the Applicant’s claims and those of her mother in separate applications for review. In any event, the differences that the Tribunal found existed in evidence given by the Applicant and by her mother did not form part of the reasons of the Tribunal for affirming the decision under review (Minister for Immigration and Citizenship v SZLFX (2009) 258 ALR 448; [2009] HCA 31 at [24]-[25] per the Court (French CJ, Heydon, Crennan, Kiefel and Bell JJ)).

8. Otherwise, the Tribunal’s only other reference to evidence given by the Applicant’s mother was in relation to a letter sent post-hearing to the Tribunal which it considered in accepting that the Applicant had attended church in Scone. In the circumstances, the allegations made by the Applicant, as referred to above, do not support the Applicant’s contention that the Tribunal dealt with the applicants unfairly.

9. The Applicant also complained that her mother’s application for a protection visa had also been refused on the basis that the mother’s evidence was inconsistent with that of the Applicant. However, again, such a complaint does not establish jurisdictional error on the part of the Tribunal in considering whether the Applicant has a well-founded fear of persecution for a Convention related reason.

10. The Tribunal was not satisfied that the Applicant’s evidence of her Christian practice in China was consistent with that of a person who was genuinely committed to participating in Christian worship and was willing to place herself in considerable personal danger for 16 months for the sake of her faith. The Tribunal accepted that the Applicant had been involved in religious activities in China for about 16 months when she was 15 years of age. However, the Tribunal found that she was unable to speak about her alleged activities at that time with a degree of familiarity and background detail.

11. The Tribunal put to the Applicant country information that indicated that the church that the Applicant claimed to have attended was a state approved religious organisation. The Tribunal did not accept the Applicant’s claim that she attended that church in order to compare it to her own underground Catholic church.

12. The Tribunal found that the Applicant provided “no substantiation for her claims to have been involved in an underground church in China”. The Tribunal found her evidence to be “notably sketchy and vague”. The Tribunal found the Applicant’s evidence of neighbours reporting church meetings to the police to be confused. Similarly, the Tribunal found the Applicant’s evidence of the name of her underground church to be confusing, although it placed no weight on the inconsistent names given by the Applicant to the underground church she claimed to have attended. The Tribunal noted that it also disregarded apparent discrepancies regarding the location of alleged gatherings and the Applicant’s “apparently unusual rendition of the Pope’s papal name”.

13. The Applicant also complained that the Tribunal found that she had attended church in Australia in order to assist her refugee claims, as did the Refugee Review Tribunal who considered her mother’s application. Again, by itself, such a complaint does not establish jurisdictional error on the part of the Tribunal. In any event, the complaint is not accurate. The Applicant’s claims of attending churches at various times and locations in Australia are dealt with below.

14. In relation to the Applicant’s claims of having attended Christian worship in Sydney, the Tribunal did not accept those claims as credible and was not satisfied that the Applicant had ever attended church services in Sydney.

15. In relation to the Applicant’s claims of attending church in Scone since the time of her arrival there in July 2008, the Tribunal accepted that claim. The Tribunal had regard to a post-hearing submission received on 31 July 2009 enclosing a letter from Reverend Woods of St Mary’s Church, Scone, confirming the Applicant’s attendance at Sunday mass. The Tribunal explored with the Applicant the reasons why she and her mother attended church services in Scone. The letter also enclosed two photographs, which the Tribunal noted the Applicant had stated at the hearing showed her and her mother at church gatherings in Scone.

16. The Tribunal was not satisfied that the Applicant attended church in Scone solely for the purpose of bolstering her refugee claims, and therefore correctly found that it was not bound to disregard that conduct as would otherwise be required by s.91R(3) of the Act. However, the Tribunal was not satisfied that such conduct indicated that the Applicant was a Christian or that she involved herself in Christian activities whether or not illegal in the eyes of authorities, if she returned to China.

17. In oral submissions in support of her application, the Applicant also asserted that she had given the Tribunal a letter from her local pastor in support of her claims but that the Tribunal had not conducted further investigations arising out of that letter and affirmed the decision under review without regard to that letter. I understand the letter to which the Applicant is referring is the letter from Reverend Woods. As stated above, the Tribunal accepted the information in Reverend Woods’ letter that the Applicant regularly attended St Mary’s church in Scone.

18. To the extent that the Applicant appears to complain that the Tribunal failed to make any further enquiry or investigation in respect of Reverend Woods’ letter, the Tribunal is under no such duty to investigate. There is no positive duty to investigate claims imposed upon the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). As their Honours Gummow and Hayne JJ made clear in SGLB, whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate an applicant’s claims, nor is it under a duty to consider utilising such permissive statutory powers which might enable it to do so; for example, see s.427(1)(d) of the Act.

19. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

20. In relation to the Applicant’s claims to have attended Catholic mass at Villawood since her detention, the Tribunal accepted that she participated in Catholic religious services in Villawood. However, the Tribunal was not satisfied that she did so other than for strengthening her claims to be a refugee. Accordingly, correctly, the Tribunal disregarded that conduct in considering whether the Applicant has a well-founded fear of persecution for a Convention reason.

1. The Applicant also complained that the Tribunal found that she had attended church in Australia in order to assist her refugee claims, as did the Refugee Review Tribunal who considered her mother’s application. Again, by itself, such a complaint does not establish jurisdictional error on the part of the Tribunal. In any event, the complaint is not accurate. The Applicant’s claims of attending churches at various times and locations in Australia are dealt with below.

2. Ultimately, the Tribunal was not satisfied that the Applicant ever attended a Christian church in China or was ever at risk of harm from authorities for such reason. Nor was the Tribunal satisfied that she would be imputed in China with an adverse political opinion for worshipping in an illegal underground church or be imputed with a Christian belief or practice by the Chinese authorities in future or that they would target her for harm for such a reason.

3. The Tribunal noted that a request was made at the end of the hearing by the Applicant’s adviser for additional time to respond in writing to concerns expressed by the Tribunal at the hearing. The adviser sought further time until 31 July 2009, to which the Tribunal agreed.

4. The Tribunal noted that, at the conclusion of the hearing, it asked the Applicant if there was anything further she wished to add and the Applicant said there was nothing.

5. The Tribunal’s decision record discloses that the Tribunal: accurately summarised the Applicant’s written claims; had regard to the evidence given by the Applicant at a departmental interview on 15 June 2009; accurately summarised a submission received from the Applicant’s adviser, dated 13 July 2009; and, noted in detail the exchanges it had with the Applicant at the hearing. The Tribunal’s decision record makes clear that the Tribunal raised with the Applicant matters of concern that it had about her evidence and noted her responses.

6. The Tribunal also explored with the Applicant why she had not applied for a protection visa when she first arrived in Australia in 2007 or shortly thereafter. The Tribunal put to the Applicant that this conduct could suggest that she did not genuinely fear persecution in China and that her only reason for claiming protection was that it was there last chance to remain in Australia. The Tribunal noted the Applicant’s response but was not persuaded by it.

7. The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

9. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

10. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  29 October 2009