SZNWP v Minister for Immigration
[2010] FMCA 167
•16 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNWP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 167 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (XA) visa – no reviewable error – application dismissed. The Applicant in these proceedings should not be identified pursuant to s.91X Migration Act 1958 (Cth) and has been given the pseudonym “SZNWP”. |
| Migration Act 1958 (Cth), ss.91R, 91X, 424, 424A |
| Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 Refugee Review Tribunal, Re: Ex parte H (2001) 75 ALJR 972 SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 |
| Applicant: | SZNWP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2144 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 18 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Counsel for the Respondents: | Ms Buchanan (solicitor) |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 3 September 2009 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2144 of 2009
| SZNWP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The Applicant was born on 27 October 1981 in Fuqing, the Fujian Province of China. On the Applicant’s Protection visa (Class XA) visa the Applicant claims that he worked as a security guard at Guanjie Electronic Co Ltd from December 2002 and was promoted as supervisor in January 2007. At Guanjie Electronic Co Ltd, the Applicant met another employee, Mr Xue Ming Li and subsequently formed a close relationship with him. This was based on the Applicant’s interest in Mr Li’s Christian beliefs.
The Applicant alleges that Mr Li’s father was responsible for setting up the Local Church in Changehun and the police were after Mr Li as his father had fled to Longquan (Zhenjiang province). The Applicant claims that he was warned about getting involved with Mr Li but was informed that PSB were planning to arrest Mr Li which the Applicant conveyed to Mr Li. Mr Li was arrested on 10 February 2008 for this reason.
The Applicant claims he was detained from 10 February 2008 until
22 February 2008. The Applicant’s friend, Mr Bai assisted the release of the Applicant. However, he was thereafter dismissed by Gianjie Electronic and was informed by Mr Bai that the police were still after him and that he should leave Fuqing.
The Applicant vacated and went to work at the Dequn printing shop in Zhejiang, a secret liaison centre of the Local Church in Longquan where he became an active member of the church. The Applicant was informed that on 25 October 2008, two brothers from the Local Church in Longquan were arrested and on 31 October 2008 Mr Li, his father and three other church brothers were arrested. At the time of hearing this news the Applicant was in his home town because his new born baby was ill. The Applicant felt that he was now a target for the PSB and with the help of Mr Bai left China on a passport in another person’s name.
The Applicant arrived in Australia on 21 November 2008 and applied for a Protection (Class XA) visa on 2 January 2009. On 2 April 2009 a delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the Applicant was notified of this decision by way of letter on 3 April 2009. The Applicant applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 1 May 2009 and the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa on 5 August 2009. It is this decision, RRT case number 0903257, a decision of Richard Derewlany that is the subject of these proceedings.
A Court Book (“CB”) prepared by the first Respondent’s solicitors and marked Exhibit “A” is the only evidence before the Court.
At the first court date directions hearing on 23 September 2009, the Applicant was granted leave to file an amended application and written submissions 14 days before the final hearing. The Applicant did not comply with these orders and therefore relies on the grounds outlined in the original application.
Tribunal’s Decision
The Applicant attended a hearing before the Tribunal on 17 June 2009 which was conducted with the assistance of an interpreter in the Mandarin – English Languages at which the Applicant gave evidence (CB 76-77). The Applicant was represented by his registered migration agent. The Tribunal decision records the details of that hearing (CB 99-104, para.25-49). The Tribunal questioned the Applicant about his practice and beliefs of Christianity and expressed to the Applicant its concern about the apparent lack of knowledge on the broader issues of the subject itself. He also had only limited knowledge of the Bible and particularly the modified Local Church (Shouters) version that he claimed he was involved with and his understanding of the basic beliefs and practices of the Local Church was limited. The Tribunal noted that the Applicant’s lack of knowledge appeared inconsistent with his claimed degree of involvement with the Church. The Tribunal also discussed with the Applicant apparent internal inconsistencies in his evidence which the Tribunal indicated may lead to a finding that he was not a credible witness and that his claims were disbelieved.
On 2 July 2009, after the hearing, the Tribunal forwarded to the Applicant a letter issued pursuant to s.424 Migration Act 1958 (Cth) (“the Act”) inviting the Applicant to comment on or respond to information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The letter sought explanation of the Applicant’s apparent lack of knowledge of his claimed religion and the relevance of the numerous inconsistencies between his evidence to the delegate and that given to the Tribunal (CB 79-85). The Applicant’s agent, on behalf of the Applicant, responded to the invitation by the way of a letter and Statutory Declaration completed by the Applicant (CB 87-89). In the Statutory Declaration he introduced a new issue that as a result of being beaten during his detention by the PSB, he had suffered brain damage which caused him confusion and poor memory, especially under pressure.
He stated that while in detention in February 2008, the Police placed a blindfold and a helmet and then beat the helmet with an iron bar thereby avoiding the visible evidence of the beating. As a result, although he had sought medical evidence, he had no scars or visible damage and the doctors were unable to provide him with medical evidence that the assault had taken place.
The Tribunal in its decision rejects the Applicant’s claim of disability as an explanation for the defects in his evidence. At paragraph [89] the Tribunal states:
The Tribunal has considered the Applicant’s claim (in response to the Tribunal’s s.424A letter) that problems with his evidence at the Department interview and at the Tribunal hearing are a result of ‘brain damage’ he sustained when he was beaten by the police in March 2007, and when he was further physically abused by the police while in detention in February 2008. He has claimed the brain injuries have caused memory loss, confusion, and difficulty in expressing himself, as well as difficulty in understanding the meaning of questions, but has stated he has been unable to obtain medical evidence relating to injuries. The Tribunal notes that the Applicant provided no details of what he claims is a significant impairment to his ability to give evidence in the original application. At the Tribunal hearing the Applicant provided answers on a range of matters, and raised the issue of his injuries only after the tribunal raised concerns about his evidence. The Tribunal considers the Applicant’s evidence is problematic in respect of a significant range of events and aspects of his beliefs and practices. The Tribunal does not accept the Applicant has established he suffers from brain injuries such that this explains any problematic aspect of his evidence, or that the Tribunal cannot rely on his evidence generally.
The Tribunal found that the Applicant was not a credible witness and did not believe any of his claims regarding the involvement in the Local Church and the alleged attention by the PSB. These findings were due to the Applicant’s lack of knowledge of Local Church practices and beliefs, together with the inconsistencies in his evidence. The Tribunal accepts that the Applicant had attended some meetings at the Local Church in Sydney, but less frequently than claimed. It found, however that his “only purpose” (para.104, CB 118) in attending was to strengthen his claim to be a refugee. It therefore regarded that this conduct pursuant to s.91R(3) of the Act.
Consideration
Ground 1
1. The Tribunal failed to consider my claims independently and fairly; and the tribunal has included a reasonable apprehension of bias
I accept the written submissions prepared by Ms Warner-Knight and relied on by Ms Buchanan that the Tribunal’s findings were well reasoned and open to it for the reason which it gave. This included the rejection of the Applicant’s claim of brain damage causing poor memory and confusion. The rejection of the Applicant’s allegation of brain damage, which he gave as explanation of the internal inconsistencies in his evidence was plainly open to it for the following reasons:
i)the lateness of the Applicant’s explanation;
ii)the absence of supporting medical evidence; and
iii)the inherent plausibility of the Applicant’s claim that he had unsuccessfully sought medical evidence but because the alleged beating caused no scars or marks, doctors were unable to assess or give evidence of such a condition.
In respect to the claim of apprehended bias, this is made in the absence of any particulars or of any written or oral submissions to support the claim. Apprehended bias will exist where a fair minded lay observer, who is properly informed of the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal member would not bring an impartial mind to the resolution to the question to be decided: Refugee Review Tribunal, Re: Ex parte H (2001) 75 ALJR 972 at [27].
Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously: Ex parte H at [30]. The requirement of procedural fairness will often require that the Applicant be plainly confronted with matters that bear adversely on their credit or which brings their account into question. Further, the decision-makers assessment of the Applicant’s credit will often depend upon the demeanour of the witness and the manner in which they give evidence: Ex parte H at [34]. In the absence of a transcript of the Tribunal hearing, or a hearing recording, it is not possible for this Court to assess what vigour if any was applied in the questioning of the Applicant on aspects of his evidence and the internal inconsistencies of that evidence. As an essential finding of the Tribunal related to the Applicant’s credibility, it is assumed that some of the questioning must have been vigorous. In these circumstances, it is to be assumed that this is the basis of the Applicant’s complaint and on the limited material before me I am not satisfied that this ground can be sustained.
Ground 2
2. Firstly, in my primary application which has been lodged with the Department of Immigration and Citizenship (“the Department”), I have stated that:
Early in March 2007, 5 police came to my office at the Guanjie Company. 3 of the police were from the Public Security Bureau (“PSB”) in Changchun City of Jilin Province, and 2 of the police were from Fuqing PSB. They told me that they would like to question Mr Xue Ming LI, who was an assistant engineer of the Guanjie Company. I then learned from them that Mr Xue Ming LI’s father, Mr Xin Diong Li, was suspected to establish and develop an illegal gathering group of the Local Church while Mr Xin Diong Li contracted a construction project in Changchun. But, Mr Xin Xiong LI fled away when the police was going to arrest him. The purpose for the police to question Mr Xue Ming LI was to find where his father Mr Xin Xiong LI had gone.
I, then, was asked to take Mr Xue Ming LI to my office; and then arranged him to sit in a chair, facing the police. However, just after a few questions was put to Mr Xue Ming LI, one police suddenly approached to him, grabbed him up, and then box his ears heavily with an excuse that the police thought that Mr Xue Min LI did not tell the truth.
Mr Xue Ming LI was graduated from Xiamen University. He worked hard, and particularly, he was very honest. I really could not accept what the police had done to such a good man no matter whether or not he knew where his father was about. So, my instinctive reaction was trying my best to stop the brutal police. Unexpectedly, I was immediately beaten down to the ground by other police, and I even did not have any time to realise what has really happened to me. Finally, I was forced to leave my office at the Guanjie Company.
Before that, I did heard [hear] some matters about the police violence, but I did not believe them very much. On one hand, some of my friends, who used to stay together with me in the army, were the police after their demobilisation from the army; and on the other hand, I had accepted some training by the PSB while I worked as a security guard at the Guanjie Company; and I knew that the police was not allowed to torture or mistreat criminals according to the relevant police code. However, this time, my personal experience has evidenced what is the truth. The police in China is [are] really brutal.
In the above-mentioned application with the Department I have further stated that:
On 10 February 2008 I was suddenly arrested by the PSB. The police was reported that I found to stay together with Mr Xue Ming LI and two strangers before their escaping; and that I had very close relationship with Mr Xue Ming LI. Combining with that I used to try to help Mr Xue Ming LI while he was questioned for the first time at my office, the police suspected that I might have been involved in Mr Xue Ming LI’s illegal activities.
From 10 to 22 February 2008, I was detained for about two weeks and I was interrogated by the police for many times; and I once again became a victim of police violence. However, I refused to confess anything, because I knew clearly that the police did not have any direct evidences against me.
As a matter of fact, my head has been seriously damaged by the police when I was beaten down to the ground by brutal police for the first time in March 2007 and when I was detained by the PSB from 10 to 22 February 2008. Particularly, while I was interrogated by the police during my detention in February 2008, the police put a helmet on my head, covered my eyes with a piece of black cloth, and then hit the helmet with a steel pipe. Sometimes, the police hit the helmet continually; and sometimes, the police stopped for quite a long period and suddenly hit the helmet again. As I have said that my eyes were covered with a piece of black cloth, I really did not know when the police would hit the helmet or how long the police would do so. But, I was highly tense. It was owing to being, mentally psychologically, tortured and mistreated by the police in this way that my health, particularly my brain, has been damaged seriously. Especially, when I have been questioned in a particular tense situation under huge pressure, such as at the Departmental interview or during the Tribunal’s hearing, I am always confused or lose memory or feel extremely difficult to express my claims or hardly understand the meaning of those questions put to me. It is for such a particular reason that I am unable to give my oral evidence properly either at the Departmental interview or during the Tribunal’s hearing.
In response to the Tribunal’s s.424A invitation forwarded to the Applicant and his agent, a Statutory Declaration was prepared which raised this claim of the police beating the Applicant with iron bars while he was wearing some form of crash helmet. It is noted that the Applicant’s registered migration agent was present at the Tribunal on the 17 February 2009 but this explanation of the Applicant’s alleged incapacity was not raised. Nor had it been previously raised by the Applicant in his visa application or interview with the delegate. There appears to be absolute silence on this issue until it is raised in the Statutory Declaration. The Tribunal addresses this aspect in its ‘Findings and Reasons’ and was not satisfied that the Applicant established that he suffered from brain damage and it could not rely on his evidence generally.
This ground cavils with the factual finding of the Tribunal and does not identify any available ground for review or jurisdictional error. I am satisfied that this ground cannot be sustained.
Ground 3
3. Secondly, it is true that I have been converted by Mr Xue Ming LI to become a devout Christian and a genuine member of the Local Church; that I attended the gatherings and weekly worships of the Local Church on regular basis from May 2007; that I had to go to Zhejiang after I was released in February 2008; that I worked at a printing shop called as “Dequn Printing Shop”, which was in Longquan of Zhejiang Province and which was a secret liaison centre of the Local Church; that two church brothers were arrested by the PSB in Hangzhou on 25 October 2008; that their confession led the PSB eventually found the secret organisation of the Local Church in Longquan area; that Mr Xue Ming Li and his father, as well as other 3 church brothers were arrested by the police on 31 October 2008; and that I had to leave China in order to escape persecution owing to my active role played in the liaison centre of the Local Church.
This ground substantially restates much of the factual material presented by the Applicant in support of his claim. The ground does not articulate any basis of review of any part of the decision that may be the basis for jurisdictional error. It is not immediately apparent that the Applicant is attempting to re-state or articulate any part of the evidence which he believes the Tribunal did not treat correctly other than its overall rejection of his claim on the basis of credibility. This does not raise a ground for review and should be rejected.
Ground 4
4. In summary, I do not think that my review application has been considered by the Tribunal fairly and properly.
Ground 4 in effect repeats the issue raised in Ground 1 that the Tribunal failed to conduct the hearing and its decision making process fairly and properly. No particulars, oral or written submissions were made by the Applicant in support of this claim. No jurisdictional error is suggested by this ground and it cannot be sustained.
Section 91R(3) Finding
Ms Warner-Knight in her written submissions, draws the Court’s attention that the Tribunal made a finding in respect of s.91R(3) but there has been no ground of review or challenge raised by the Applicant in respect of this decision. As this is a self-represented litigant, not conversant in the English language and with no understanding of the jurisdictional issues in respect to the operations of the Act it appropriate to review the Tribunal’s decision on this aspect. It is submitted, and I agree, that the Tribunal correctly applied a “sole purpose test” for disregarding the relevant conduct (CB 118 – 119 at paras.99-04). In Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 per French CJ and Bell J at [13] their Honours stated
[13] As to what is necessary to satisfy the condition in para (b), we agree with Crennan and Kiefel JJ that an applicant seeking to rely upon conduct engaged in in Australia must show that the conduct was not engaged in solely to strengthen his or her claim. By way of example, conduct in Australia may reflect a continued commitment by the applicant to religious practices followed or political opinions held and expressed in his or her country of origin. It could not be said to have been engaged in solely to strengthen the claim to be a refugee. It might then be relied upon by a decision-maker to infer prior commitment to a particular religious practice or political opinion in the country of origin..
In SZJYA v Minister for Immigration and Citizenship (2) [2008] FCA 911 His Honour Rares J stated at [57]:
[57] The appellant had no opportunity to give evidence or to make submissions, in accordance with s 425(1), that she had not just learnt what she knew about Christianity and the Local Church since arriving here. That was a denial of procedural fairness: SZBEL 228 CLR at 165 [44].
The situation in the matter before this Court can be distinguished from the procedure adopted in SZJYA (supra). In the ‘Findings and Reasons’ of the Tribunal decision, it records the issues that were raised with the Applicant in respect of the attendance of the Local Church in Australia. I am satisfied that no procedural error or legal error amounting to jurisdictional error is apparent in the reasons of the Tribunal decision.
Conclusion
Although the Applicant appeared as a self-represented litigant at the hearing, he had been assisted in all preparatory steps by the registered migration agent of Priscilla International Co Pty Ltd. The Court provided, and the Applicant accepted, the opportunity to obtain free legal advice from a panel member under the advice scheme. However the Applicant elected not to file an amended application or written submission. As usually seen in clients of this agency, the Applicant read from notes which, in effect, re-stated his visa application and the contents of the application to this Court. There does not appear to be any genuine attempt to identify any jurisdictional error in the Tribunal decision or to present any particulars or submissions supporting that claim.
I am satisfied that the Tribunal has acted in accordance with its obligations under the Act and considered the claims made by the Applicant and placed before it. The grounds for review identified in the application do not identify any jurisdictional error and the application cannot be sustained. Consequently the application should be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 16 March 2010
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