SZNXK v Minister for Immigration
[2009] FMCA 1296
•14 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNXK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1296 |
| MIGRATION – Review of decision of Refugee Review Tribunal – findings open to Tribunal on evidence before it – no requirement to consider whether applicant lacked capacity – weight to be accorded to evidence a matter for the Tribunal – no failure to consider claims – findings not inconsistent with submissions – no requirement to consider claims not made – application dismissed. |
| Migration Act 1958 (Cth), s.91R |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZMOI v Minister for Immigration & Anor [2008] FMCA 1507 S395/2002 and S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112; 78 ALJR 180 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZNXK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2275 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 December 2009 |
| Date of Last Submission: | 14 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2009 |
REPRESENTATION
| Appearing for the Applicant: | In Person |
| Solicitors for the Applicant: | - |
| Appearing for the Respondents: | Greg Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 14 September 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2275 of 2009
| SZNXK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application filed on 14 September 2009 made under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27August 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 11 July 2008, and applied for a protection visa on 19 March 2009. (See Court Book – “CB”, CB 3 to CB 32, including Statutory Declaration in support.) He was assisted by a registered migration agent who was also a lawyer (CB 11).
Claims to Protection
The applicant’s claim to fear persecutory harm in China was initially set out in a declaration attached to his protection visa application.
The applicant claimed that he did not want to return to China because he feared being forcibly sterilised. He claimed that his wife had been forced to undergo an abortion in the preceding year. From the statement, it appears that the applicant came to Australia as part of an entertainment group, whom he said he met for the first time at the airport. He left them after arrival.
The applicant also claimed that he had spoken to his wife since that time, and that she had told him that police had come to his house many times searching for him.
He also claimed that in either 1997 or 1998 the company that employed him went bankrupt. That he received no compensation, unlike managers in the company. On two subsequent occasions, in 2006 and 2007, he went to Beijing, presumably to protest against this situation. He stated that, as a result of this:
“That may be regarded as an anti-government activity”.
In relation to the second occasion, the applicant claimed to have been subsequently detained for nine days. He claimed that, since his release, he had been put under surveillance by the authorities, and that he had been regarded as being “anti-government”.
The Delegate
Before the delegate the applicant submitted another statement in May 2009 (CB 63 to CB 66). In addition to the matters, generally referred to above, he also asserted that, when he was transferred from immigration detention in Perth to Villawood in Sydney, he came to know “church people”, and had now taken up the Catholic faith.
The delegate found that the applicant’s factual claims, as they related to events in China, “lacked veracity”, and found that the applicant was not of adverse interest to the authorities when he left China (CB 79). The delegate disregarded the applicant’s conversion to Catholicism in Australia, pursuant to s.91R(3) of the Act. The delegate had formed the view, in effect, that the applicant’s conversion was done for the purpose of strengthening his claims to be a refugee. In any event, the delegate also found that the applicant would not be subject to persecution in China for this reason.
The protection visa application was refused on 30 June 2009.
The Tribunal
The applicant applied to the Tribunal for review on 3 July 2009 (CB 86 to CB 89). He appointed a different migration agent to represent him (CB 90).
The applicant was invited to, and attended, a hearing before the Tribunal on 30 July 2009. His representative appears to have been present, but only for a short time.
The Tribunal’s account of what occurred at the hearing is set out in its decision record. ([63] to [120] at CB 147 to CB 155). A witness gave evidence on the applicant’s behalf (CB 103).
Following the hearing, by letter dated 30 July 2009, the Tribunal wrote to the applicant confirming that an invitation had been extended to him at the hearing to comment on certain information that had been raised with him at the hearing, which the Tribunal said could be the reason, or a part of the reason for affirming the decision under review.
The information raised was as follows:
1)Information that he had given to the Minister’s delegate at an interview which appeared to contradict information that he had given in his statement;
2)The translation of documents that he had provided to the Tribunal;
3)Invited his comment on aspects of the delegate’s reasons; and
4)Contradictory evidence that he had given the Tribunal regarding his reasons for fearing harm if he were to return to China.
A further letter from the Tribunal dated 31 July 2009 raised a further perceived inconsistency in what he told the Tribunal relating to the date in which a particular protest in Beijing had occurred, at which he said he had attended.
The translation of relevant documents, and the applicant’s response, was received by the Tribunal on 13 August, and 20 August 2009 (CB 122 to CB 134).
The Tribunal rejected the applicant’s claims regarding his involvement in what he said were perceived to be anti-government protests, and to have been subsequently detained. This was said to be because of inconsistencies found in his evidence, and generally, in addition, the applicant’s delay in applying for protection after arrival in Australia. It appears, in this regard, that the application for protection was made after the applicant had been taken into immigration detention ([137] to [152] of the decision record).
The Tribunal also rejected the applicant’s claims relating to his wife’s forced abortion, and his claim that he would have to undergo sterilisation. In its reasoning, the Tribunal gave no weight to a document referred to as the “Diagnostic Certificate” in relation to his wife. For the most part, however, the Tribunal’s analysis was derived from, and based on, the applicant’s own evidence provided to the Tribunal.
The Tribunal also found that there was no evidence that the applicant had any active interest in Christianity before his arrival in Australia. It did not accept his claim that he had an attraction to Christianity in China.
However, it is important for the applicant to note, given what he told the Court, and which I will refer to below, the Tribunal accepted the evidence given at the hearing, and it is quite clear, in context, this included the evidence given by the applicant’s witness that, despite its doubts, the Tribunal accepted that he had converted to Christianity in Australia. Further, and most importantly, given the applicant’s statements to the Court, that this was done for a reason other than strengthening his claims to be a refugee.
In other words, unlike the delegate, the Tribunal accepted that the applicant’s conversion, in that sense, was not only genuine, but not done for the motive only of strengthening his refugee claims. Importantly, the Tribunal therefore did not disregard this conduct for the purposes of s.91R(3). This again is different to the approach taken by the delegate.
However, and ultimately, the Tribunal was not satisfied that the applicant would engage in relevant activities in China to the extent that he might come to the adverse attention of the authorities for reasons of his religious conversion or practice.
Application to the Court
The application to the Court is in the following terms:
“1. The RRT fails to realise that the ruin of my life and my family was completely caused by the Chinese government’s persecution of me and its threat to have me sterilised, which forced me to flee my country and to separate from my family;
2. The RRT fails to accept the fact that I have a poor memory for especially dates and number due to my mental damages resulting from my two previous car accidents;
3. The RRT gives no weight to the documents I submitted only because of the ease with which fraudulent documents can be obtained in China;
4. The RRT fails to consider the possibility of my persecution because of my conversion to and involvement in Catholicism if I were to go back to China. With my faith in Christ deepening the danger of my existence in China will increase proportionally. My fear of persecution on the ground of my conversion to Christianity was claimed by my agent and my witness on my behalf. The reason why I didn’t made such claims was that my conversion was based on genuine belief, not motivated for the purpose of strengthening my claim to be a refugee.”
Before the Court
At the hearing before the Court today, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. The applicant was accompanied to Court by the person who had appeared as his witness before the Tribunal.
Mr G Johnson appeared for the first respondent. Written submissions have been filed on behalf of the Minister, in addition to the Court Book. I granted leave for a further bundle of relevant documents to be filed in Court and added to the Court Book, and marked as CB 171 to CB 178 inclusive. These documents related to the applicant’s medical examination in connection with his application for the visa. The applicant did not provide anything further of a documentary nature to the Court.
Before the Court: The Applicant
Initially, the applicant stated that he had been assisted by a friend, who had written out his grounds. That he could not assist with these legal grounds because he was not a lawyer. I verified with his friend, who came to provide support, that she too was unable to assist the applicant in this regard.
I explained to the applicant the necessity, before the Court, to focus on the legal issues. After hearing submissions from Mr Johnson, the applicant raised three matters with the Court.
The first was to state strongly his belief in God. He submitted that, at both the interview with the delegate and, relevantly, at the hearing with the Tribunal, he was asked whether his religious conversion was linked to his refugee application. The applicant explained that it was impossible for him to use his holy belief simply to supplement his case, and that originally this matter had nothing to do with his case.
Second, he complained that the view that had been taken by the Tribunal that the conversion was merely done to strengthen his refugee claims. He complained that he was not believed when he said that he converted, and that it was not believed that he would continue his practice of his Christian faith in the future. The applicant complained that this was an assumption on the part of the Tribunal, and asked, rhetorically at least, how the Tribunal could ever know how he would behave in the future.
Third, the applicant submitted that his memory loss was not taken into consideration. That he could not remember dates or times, and he stated that he could not remember what had just been said by the Minister’s solicitor.
The first two points relate to ground 4, and I will deal with them at that time. The third point relates to ground 2.
Considerations
Ground One
Turning first to ground one, the applicant takes issue with the Tribunal’s conclusion that he would not face persecution. In particular, he takes issue with its rejection of the factual basis of his claim to fear forced sterilisation if he were to return to China.
It is the case that the Tribunal’s finding relating to the matter of sterilisation was open to the Tribunal to make on the evidence that was before it. It gave reasons for this finding. These reasons were directed to supporting, and providing a probative basis for, its ultimate conclusion.
As the Minister submits, and I can only agree, this ground is an attempt to engage this Court in impermissible merits review. That is, to ask this Court to substitute its own findings of fact for those made by the Tribunal in relation to the merits of the applicant’s refugee claims. It is well established that this Court has no capacity to engage in such a review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Ground one does not succeed.
Ground Two
The second ground asserts that the Tribunal failed to accept that the applicant had a poor memory because of damage resulting from two previous car accidents, and that this damage affected his recall of dates and numbers. The applicant indeed pressed this claim before the Court by way of submission. But has not provided any evidence in relation to this issue.
First, I should note that there was no clear, at least, claim before the delegate, nor before the Tribunal, either by the applicant or by his successive agents, that the applicant suffered from a mental condition such as to affect his memory.
Second, no medical evidence in support of this claim was ever provided. Nor, it must be noted, was any submission made that any such evidence existed in any event. I stress here that I am talking about medical evidence, as opposed to general assertions.
Third, the applicant did raise the issue of his poor memory at the hearing with the Tribunal in response to concerns about the nature of his evidence. The Tribunal’s decision record contains an account of what the Tribunal reported had occurred at the hearing.
The Tribunal reports ([83] at CB 150) that it asked if the applicant had any adverse medical conditions. He said he was in good health but he had been involved in a car accident some time ago, and his memory was not so good as a result.
I should just note that, despite opportunity provided to the applicant at the first Court date, no evidence has been put before this Court to challenge the Tribunal’s account of what it said occurred at the hearing. In these circumstances, it is not open to this Court to otherwise draw inferences about what may, or may not, have occurred. What remains before the Court is the Tribunal’s account of what it said occurred.
Any plain reading of the material before the Court, of what was relevantly put before the Tribunal in this regard, reveals that this was the full extent of the applicant’s claim in this regard. In those circumstances, I cannot see that the circumstances required the Tribunal to have assumed that his claimed memory loss was due to any other adverse medical condition. That is, the Tribunal noted what the applicant had said (that his memory was not so good as a result of the car accidents).
In its analysis, it dealt with his evidence as put to it. I note the Tribunal found that, notwithstanding the applicant’s evidence and its nature, it was not such as to explain his inability to recall the central events of his factual claims. For example, when the factory at which he was employed closed such that he embarked on the claimed protests ([144] at CB 160).
I can only agree with the Minister’s submission that, given what is before the Court, this was not a case where the Tribunal was then required to further consider whether the applicant lacked capacity to properly participate in what would be described as a meaningful hearing. I note, in this regard, the Minister’s reference to SZMOI v Minister for Immigration & Anor [2008] FMCA 1507.
The applicant had the opportunity to explain the inconsistencies in his evidence. What he said was that he had poor memory. There was no claim that he had suffered what could be said to be mental damage. The Tribunal was under no obligation, in these circumstances, to have considered his capacity to participate meaningfully at the hearing.
Ground Three
Ground three complains that the Tribunal gave no weight to his documents because of the ease with which fraudulent documents can be obtained in China.
First, it should be noted that the documents to which the Tribunal said it gave no weight (see [122] and CB 122 to CB 131) were photocopies. No originals were ever given to the Minister’s Department or the Tribunal ([123]).
Second, as the Minister submits, the determination as to whether the Tribunal accepts or rejects evidence in the circumstances of each case is a matter for the Tribunal and without anything further, this would not generally lead to jurisdictional error.
Weight to be accorded to such evidence is, generally, a matter for the Tribunal. But the basis of the applicant’s complaint is that the Tribunal gave no weight to his documents, only because of the ease with which fraudulent documents can be obtained in China.
In this regard, the applicant’s complaint misconceives the nature of the Tribunal’s findings. On any plain reading of its decision record, the Tribunal did not make its findings as to weight in relation to the documents based only on the issue of the availability of fraudulent documents in China.
Specifically, there were four documents initially provided by the applicant. These are noted at [122] of the Tribunal’s decision record:
“• a ‘Diagnostic Certificate’ from a hospital in Tianjin dated 12 March 2008 stating that a woman with a name very close to, but not identical to, the name given in the applicant’s protection visa application as that of his wife, was pregnant. It included the words ‘Medical advice: Abortion as a result of breach of Family Planning Policy.’
• a ‘penalty decision notice’ from a branch of the PSB in Tianjin city;
• a testimonial letter from a named person, stating that, in the winter of 2006, the applicant ‘led over several hundred workers’ to Beijing to petition about the loss of work only to be stopped and turned back. It states that a second protest was held in the summer of 2007, around September or October. On the second occasion, the applicant was detained for nine days and was ‘brutally beaten up inside and were shocked with the trick baton.’
• another testimonial letter from a second named person, more brief in the first but to the same effect.”
In relation to the penalty notice, the Tribunal noted that it was a photocopy. But importantly, that its contents were inconsistent with the applicant’s own evidence. Further, that if it were a genuine document, there would be an expectation that it would have been provided with the protection visa application, particularly in circumstances where the applicant was, at that time, assisted by a migration agent, who was also a solicitor (see generally [147] to [149] of the decision record).
In relation to the two testimonial letters provided to the Tribunal by the applicant, the Tribunal noted that they were both unsigned statements in support of that applicant. That, again, these were photocopies. No originals had been provided. That they were unsigned, and that there were no features to identify the authors, nor how they came to know of the applicant’s involvement in protests in China (see [149] to [151]).
As to the Diagnostic Certificate, said to be from a hospital in China, and said to be in relation to his wife, the Tribunal found that, with reference to country information available to it, the document itself did not conform with what was set out in this information as to what would be expected in terms of presentation and content for documents of this type ([158] – [159]).
Importantly, therefore, in relation to all of the documents, the Tribunal did not reject the documents simply on some general information about the availability of fraudulent documents in China. But in addition, dealt specifically with each of the documents, and articulated its concerns, which led it then to assign no weight to this documentation.
In all, therefore, this ground is not made out. There was probative material before the Tribunal on which it based its findings. That is the applicant’s own evidence and the contents of the documents themselves. Further, in relation to at least one of the documents, country information quite separate to the country information relating to fraudulent documents generally, on which the Tribunal based its “no weight” findings. As I indicated earlier, the issue of the weight to be assigned is generally a matter for the Tribunal. In the present circumstances, where the Tribunal gave cogent reasons, I cannot see error in the Tribunal’s findings that led to its conclusion that “no weight” would be given to each of the documents.
Ground Four
In ground four, the applicant complains that the Tribunal failed to consider the possibility of persecution if he were to return to China, based on his conversion to Catholicism.
In one sense, and I note that the applicant received assistance from a friend in drafting this complaint, it must be said, with respect to the applicant, that this is an interesting complaint to put before the Court at this time, given what the applicant himself put in his submission to the Tribunal following the hearing.
As reproduced at CB 134, the certified translation of what appears at CB 133, the applicant relevantly says:
“My religious belief has nothing to do whatsoever with the case of my application”.
This submission was written by the applicant himself (CB 133), on the best evidence available to the Court. It was translated by a NAATI accredited interpreter, and submitted to the Tribunal by, and at a time, when the applicant was represented by a registered migration agent.
In any event, focussing on the ground as pleaded, the complaint is that the Tribunal failed to consider this issue. However, it must be noted that the Tribunal did not fail to consider whether the applicant had converted to Christianity in Australia. Quite to the contrary, the Tribunal found that he had. It accepted that he had ([170]).
Importantly, the Tribunal made no finding that the applicant had engaged in conduct in Australia, being the conversion to Catholicism, only for the purpose of strengthening his refugee claims. This was very different to the approach taken by the delegate. While it said that it had doubts, nonetheless the Tribunal accepted what could be said to be the quite separate and overriding motivation of the applicant in engaging in this conduct. That is, his genuine conversion to Catholicism.
Before the Court today, the applicant submitted that his belief in God was “genuine”, and the Tribunal appears to have accepted that. The applicant submitted that it was impossible to use his Holy belief to supplement his refugee case. The applicant’s submission misunderstood the Tribunal’s relevant finding.
It is not, as the applicant told the Court, that the Tribunal did not believe him in relation to the motivation of his conversion. That may have been the case with the Minister’s delegate. But it was clearly not the case with the Tribunal. The Tribunal then proceeded to consider the affect of this conversion on the relevant test that it was jurisdictionally required to apply. That is, it specifically considered whether this would lead to a well-founded fear of persecution if he were to return to China (see [171] to [175] of the decision record).
The Tribunal noted that such a claim, that the applicant would face persecutory harm arising from his religious conviction, had been made by his migration agent. This was against a background where the applicant had made some reference, as the Tribunal said, to religious symbolism being to his liking while in China. But what the Tribunal was left with at the hearing, following the agent’s submission, was that the applicant’s genuine conversion to Catholicism, and, more relevantly, his practice of Catholicism, if he were to return to China, would lead to persecutory harm.
Again, any plain reading of the Tribunal’s unchallenged account of what occurred at the hearing reveals that it gave the applicant every opportunity to advance any claims, that is claims of persecution, in relation to his religion (see in particular what is set out at [78], and in particularly [117] of the decision record). When this is read with the applicant’s subsequent written statement, to which I have already referred, there is certainly sufficient evidence before the Tribunal to make it open to the Tribunal to find that the applicant had made no claims in this regard.
In all, therefore, while there had been some references, of the type that I have already noted, before the delegate (a liking of symbols), it was the claim made on the applicant’s behalf by the agent that the Tribunal sought to draw out the applicant’s own position. At the end of the hearing, and certainly after receiving the subsequent written submission by the applicant, the Tribunal quite properly could say that no claim to fear persecutory harm on the basis of religion had been put forward by the applicant, both in the sense of what the applicant himself had said, but also in the sense of any such claims surviving the hearing.
I note again that no transcript has been put before the Court by the applicant to challenge the Tribunal’s account of what occurred at the hearing, so that what the Tribunal said transpired at the hearing remains as the only relevant evidence before the Court. At best, therefore, as I said, the applicant’s subsequent written submission can only be read as either confirmation that this claim was not made by the applicant, or, if a claim can be said to have been made on his behalf, and therefore arising from the circumstances before the Tribunal, he resiled from it by way of his subsequent written statement in addition to what he personally said at the hearing.
In short the applicant’s complaint that the Tribunal failed to consider the possibility of persecution because of his conversion, if he were to return to China, is not made out.
The Migration Agent/Solicitor
This raises an interesting point. The applicant and his agent appear to have two different views about the relevance of the conversion to Catholicism, and its impact on the applicant’s future if he were to return to China.
I should note, as I raised with Mr Johnson during the course of the hearing, that it does not appear to be the only time that some inconsistency in presentation emerged between the applicant and his first advisor. The Tribunal’s decision record reports that an inconsistency between his evidence at the hearing and what was written in documentation in support of his protection visa application was also raised with the applicant. At [86] of the Tribunal’s decision record that inconsistency was explained by the applicant as being that documentation submitted in support of his application for a visa to come to Australia had been prepared by the agent who assisted with that application, and that: “… it was not true”.
This was a reference to the migration agent/solicitor who represented him in the making of the application for the protection visa (CB 1 and CB 2). I note that it was a different agent who represented the applicant before the Tribunal.
On its face, this is a serious allegation for the applicant to make against a registered migration agent who is also a solicitor. It may be that any difference in presentation was as a result of some mistaken interpretation, or indeed just simply some other mistake. Nonetheless, in my view I do ask those who advise the Minister whether this issue should be further investigated. To consider whether there is sufficient material to warrant a referral to an appropriate authority dealing with migration agent conduct, or, if appropriate, the relevant state authority dealing with the conduct of solicitors.
I stress that I clearly make no finding of any impropriety against the migration agent/solicitor. I cannot do so on what is before me. But a clear statement, under oath, by an applicant that a document has been prepared on his behalf by a registered migration agent/solicitor contains untruths, in my view, is a serious matter. It is worthy at least of some initial investigation. I should just note that the fact that the solicitor involved appears to be an employee of a community legal centre does not allow for any lesser standard to apply.
Other Consideration
Given that the applicant was unrepresented before the Court, I did consider whether what the Tribunal relevantly said at [175] of the decision revealed error:
“In the absence of such evidence, the Tribunal is not satisfied that, on the basis of a limited contact with the Catholic Church while in detention in Villawood, the applicant would engage in any activities in China to the extent that he might himself [come] to the adverse attention of Chinese authorities”.
This can squarely be linked to the applicant’s submission today that “no one”, and, in context, the Tribunal, could ever know how he would behave in the future. That he would continue his religious belief.
As I said earlier, I understood the applicant’s comments to be put in the context that he was under some misapprehension that the Tribunal had rejected the “genuineness” of his religious conversion. Given what I have already said, it is clear that the Tribunal made no such finding. In fact, it found to the contrary.
But I did consider whether what the Tribunal said (at [175]) revealed error of the type explained by the High Court in S395/2002 and S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 203 ALR 112; 78 ALJR 180. That is, whether the Tribunal expected the applicant to somehow modify his religious conduct if he were to return to China.
I agree with submissions by Mr Johnson. I am of the view that, at the very least, on a fair reading of the Tribunal’s analysis, what the Tribunal meant was that, based on the applicant’s evidence, and his evidence of his contact with the Catholic Church while in Immigration detention, and in the absence of any articulation of any related fears by the applicant, the applicant would not come to the adverse attention of the Chinese authorities for reason of his religion if he were to return.
The Tribunal’s finding is not inconsistent with the applicant’s submission that he would continue with his religious practice in China in the way he had begun to practice in Australia.
The Applicant’s Belief
In all, therefore, the Tribunal did consider the claim initially articulated by the agent on the applicant’s behalf as to the issue of religion, based on the applicant’s own evidence, but was not satisfied that this would lead to a real chance of persecutory harm on return. The Tribunal’s findings, and its conclusion, were all open to it on what was before it. The Tribunal gave reasons in support of this conclusion. I cannot see that jurisdictional error is revealed.
I should note that the last sentences of ground four, as pleaded, purport to provide an explanation as to why the applicant did not make any claims to the Tribunal that his religious conversion would lead to harm. This is:
“The reason why I didn’t made such claims was that my conversion was based on genuine belief, not motivated for the purpose of strengthening my claim to be a refugee.”
This, indeed, was consistent with to what the applicant told the Court today.
In all, the answer to the applicant is that, while he may have been focussed on what may have been explained to him as being the requirements of s.91R(3) of the Act in relation to “conduct”, including religious conversion in Australia, the Tribunal found that, indeed, his motivation for conversion was not done for the sole purpose of strengthening his claim to be a refugee. The fact that the applicant says that he did not make any claims to fear harm for whatever reason can only provide support for the proposition that there was no such claim before the Tribunal to require it to enter into such consideration.
Whatever it was that motivated the applicant to give the relevant evidence at the hearing, and make the statement subsequently in writing, does not of itself reveal error on the part of the Tribunal. Simply, if he did not make any relevant claims, for whatever reason, then there was no requirement for the Tribunal to consider claims not made. But beyond that, the Tribunal did consider the issue properly, and, in my view, I say properly because, once having been raised by the agent, it was the prudent course for the Tribunal to deal with what the agent said, notwithstanding that the applicant appeared to resile from that position.
In all, therefore, this ground as the applicant attempted to explain it before the Court, is not made out.
Conclusion
There are the four grounds of the application. I did consider separately whether any other matters may have been of assistance, or the subject of proper consideration before the Court, in light of the issues that the Court is required to consider, but could not discern jurisdictional error on the part of the Tribunal.
It is the case, as the Minister submits, that the decision of the Tribunal is a privative clause decision (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). A Tribunal decision only becomes susceptible to judicial review when jurisdictional error can be discerned. I cannot discern such error and, therefore, I will make an order dismissing the application to the Court.
Costs
In my view, it is appropriate that an order for costs be made. Such orders are made in matters of this type in the normal course of events, unless there is something before the Court that would argue against, or outweigh the making of such an order. I cannot see that there is anything before the Court of that nature. Nor has the applicant put anything before the court to argue against the making of such an order. I will, therefore, make the order as sought by the Minister.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: D Nestor
Date: 23 December 2009
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