SZNYE v Minister for Immigration
[2010] FMCA 164
•3 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNYE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 164 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 |
| Applicant: | SZNYE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2331 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 3 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2010 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2331 of 2009
| SZNYE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 31 August 2009 affirming a decision of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the People’s Republic of China, first arrived in Australia in November 2007 as the holder of a student visa. He applied for a protection visa in January 2009. In a statement accompanying his protection visa application the applicant claimed to fear persecution on the basis of events that had happened to his father in China after the applicant came to Australia.
He claimed that his father had missed him and had become depressed and that in February 2008, after recovering his health, his father became a Christian. The applicant claimed that while his father and fellow Christians were gathered at a home, police raided the premises and took away a named aunt and some other persons. However his mother and father escaped. He claimed that on the same night the police seized the family home.
The applicant claimed that he had received letters from his father in which his father told him to stay in Australia and not return to China or the whole family would be persecuted. A number of handwritten documents, translations, certificates and photographs accompany the protection visa application.
The application was refused by a delegate of the first respondent, and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing. He provided further documents to the Tribunal.
In its reasons for decision the Tribunal set out the claims made by the applicant in connection with his protection visa application. It also described the claims made at the Tribunal hearing and documents received after the Tribunal hearing.
In its findings and reasons the Tribunal summarised the applicant’s claims that he would be persecuted in China because of his association with his father, whom he claimed had become a Christian in February 2008 and was involved in activities with the Christian church. It set out the applicant’s claim that the “authorities came to arrest his father for his Christian activities in August/September 2008” and that the applicant’s parents and sister had gone into hiding in China.
The applicant also claimed to the Tribunal that he had become a Christian while in Australia and that he would be persecuted as a result of his own Christian beliefs. He claimed he had attended church in Australia and had been baptised.
The Tribunal found, however, that “the applicant did not give truthful evidence to it in respect of his claims”. It did not accept that the applicant feared harm from authorities in China for the reasons claimed or that he could not return to China for such reasons.
It considered first the applicant’s claims based on the events he said had occurred in relation to his father. The Tribunal did not accept the claims that the applicant could not return to China because his father became a Christian and was of interest to the authorities due to his religious beliefs and activities. In particular, it did not accept as true that the authorities had attempted to arrest his father because of his father’s religious activities or that his father and other family members went into hiding and remained there to avoid harm. The Tribunal considered that the applicant’s evidence about these claims, including the documents he provided to support such claims, was “unreliable” and that these claims had been “invented” to assist the applicant to obtain a protection visa.
The Tribunal first addressed the applicant’s oral evidence, finding that his oral evidence about when he knew his father had become a Christian in February 2008 was “not consistent with other evidence that he [had] presented in support of his claims”. It referred to the fact that the applicant had told the Tribunal that “he did not know that his father [had become] a Christian until he received his father’s letter of October 2008” and he did not know that it was in February 2008 that his father became a Christian “until a few days before the Tribunal hearing, when he received the certificate/document which he gave to the Tribunal stating that fact”. The Tribunal found, however, that this evidence conflicted with the photograph the applicant had submitted in support of his protection visa application which was said to be a photograph of his father in China standing in front of Christian calendars.
The Tribunal had regard to the fact that this photograph was dated February 2008 and had the caption written underneath: “My Father - A Devout Christian”. In the Tribunal’s view, the photograph, date and caption indicated that the applicant knew at least at the date of the protection visa application that his father was a Christian in February 2008. It also had regard to the fact that the applicant had returned to China to see his family in April 2008 for about a month. His evidence was that although he thought it was strange that Christian calendars were on the walls at home, he did not know his father had become a Christian at that time. However the Tribunal was of the view that “if the applicant’s father did join the Christian church in February 2008, and if he [was] actively participating in church activities” (as claimed in an undated document headed Testimony provided to the Tribunal on 27 July 2009, and also in a document dated 28 June 2009), then “the applicant would have known about his father’s conversion to Christianity at … the time of his visit” to China in April 2008. It found his explanation (that he went back urgently and had a lot of friends and relatives there whom he visited, that he did not notice it and that the month passed quickly) was “not plausible or reasonable”.
The Tribunal was of the view that the applicant “modified his evidence” to address the Tribunal’s concern at the hearing about why his father would have had a Christian calendar dated 2006 on the wall of his home if he only became a Christian in February 2008. It considered, but did not accept, his explanation that the photograph showed calendars on the wall at his brother’s home and that it was not his own family home.
Nor did the Tribunal accept that the four letters the applicant had provided in support of his protection visa application (dated in October and November 2008 and said to be exchanged between the applicant and his parents) were reliable evidence of the facts in them. It did not accept that they were genuine letters exchanged between the applicant and his parents. The Tribunal was of the view that the applicant “did not reasonably explain why he had what appeared to be his original letters” that he said he had sent to his parents or to his father. It did not accept that these were drafts he had prepared and kept as there was no reasonable explanation as to why such drafts would be kept, signed and dated. The Tribunal considered these letters were “created by or for the applicant to provide documents to support his claims” for protection.
As it had found that the applicant was “not a witness of truth”, the Tribunal did not accept that the document sent to the Tribunal from a person described as the applicant’s neighbour dated 5 June 2009, the undated document headed “Testimony” provided on 27 July 2009 stating that the applicant’s father was a Christian and had been actively participating in church activities since February 2008 and was now missing or the document dated 28 June 2009 making a similar statement were reliable evidence of the facts in them.
The Tribunal found that photographs provided by the applicant to the Department were not “reliable evidence that the applicant’s father became a Christian, that he was/is persecuted for his Christianity”, or that his parents and sister “had to go into hiding at any time to avoid harm in China”.
The Tribunal then considered the applicant’s claims that he had become a Christian in Australia and feared persecution on that basis. The Tribunal did “not accept as true that the applicant ha[d] become a genuine Christian in Australia” or that he feared harm because he had become a Christian in Australia.
It referred to the fact that in his application for a protection visa in January 2009 the applicant had claimed that his father was persecuted because of his Christianity. However while the application form asked about the applicant’s religion, he had not claimed to be a Christian himself. The Tribunal was of the view that “if the applicant had genuinely become a Christian in Australia…in November 2008” as claimed and “feared harm…for that reason, he would have made that claim earlier” and in particular, would have included that claim in the protection visa application made in January 2009. It addressed the applicant’s explanation for not including this claim (in particular that he had not been baptised and had only been a Christian for a short period of time; that he was not “that deep” into Christianity at that time; that he did not know that being Christian would help with the application, and that he was not confident completing the form). The Tribunal did not accept that the applicant had given a reasonable explanation for why he did not include such a claim in his protection visa application. It did “not accept that he was not confident” in completing the form, having regard to the fact that he completed and “attached a detailed statement and documents and photographs in support”. It also had regard to the fact that when he claimed that he was a Christian to the Tribunal, he was still not baptised. The Tribunal was of the view that the applicant knew that being a Christian was relevant to his application, given that the claims he made were based on his father’s religious activities.
As it had found that the applicant was not a witness of truth, the Tribunal placed “no weight on the undated document” the applicant produced, “written on plain paper with no description of the writer apart from his name”. The Tribunal did accept that since coming to Australia the applicant had attended and been photographed at a specified church in Sydney and also a baptism on 19 July 2009. It also accepted that he had “learned the principles and details of Christianity about which he told the Tribunal”.
However the Tribunal found that the reason the applicant had attended the church and learned about Christianity in Australia was to strengthen his claim to be a refugee. It had regard to s.91R(3) of the Migration Act 1958 (Cth), referring to the fact that where conduct in Australia was in issue the applicant had the practical burden of satisfying the Minister or Tribunal that it was otherwise than for the purpose of strengthening his claims to be a refugee. The Tribunal was not satisfied that the applicant had attended the named church in Australia and learnt about Christianity otherwise than to strengthen his claim to be a refugee and hence disregarded that evidence for the purposes of the application pursuant to s.91R(3) of the Act.
The Tribunal concluded that there was no plausible evidence before it that the applicant had suffered, or would suffer in the reasonably foreseeable future, persecution because of his religion or for any other Convention reason. It found that there was no real chance that the applicant would suffer persecution for a Convention reason and was not satisfied that he had a well-founded fear of persecution in China within the meaning of the Refugees Convention.
The applicant sought review by application filed in this court on 23 September 2009. The application contains three grounds. The applicant did not file any amended application or written submissions, but made oral submissions in the hearing today.
The first ground in the application is that the applicant “provided many evidences to the tribunal to support my claim but the tribunal did not accept any of them”. The second ground is that the applicant became “a genuine Christian in Australia but the tribunal said I did it just to strengthen my claim to be a refugee but it is not ture (sic)”, and the third ground is that the “Tribunal did not accept my explanation for the conflicts with the photos I submitted in support of my claim”.
Insofar as these grounds seek merits review, merits review is not available in this court. The applicant elaborated on each of these grounds in oral submissions, and I will consider them separately. The first ground is that the applicant provided evidence to the Tribunal to support his claim and the Tribunal did not accept it. The applicant suggested first that he had asked the Department (not the Tribunal) to call his father and that the Department did not do so. I clarified with the applicant that his concern was that he had asked the Department to call his father to verify his evidence. There was no suggestion from the applicant that he had asked the Tribunal to obtain any such further evidence. It is the Tribunal decision that is the subject of these proceedings.
The only evidence before the court as to the Tribunal hearing is the Tribunal reasons for decision. On the material before the court this is not a case in which the evidence is such as to establish that the Tribunal was under a duty to inquire in the sense that there was a failure to make an inquiry about a critical fact the existence of which was easily ascertained. As stated in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25] – [26], “The duty imposed upon the Tribunal by the Migration Act is a duty to review” and there is no jurisdictional error where “there was nothing on the record to indicate that any further inquiry by the Tribunal…could have yielded a useful result.”
The applicant also contended that he had asked the Tribunal for more time to provide additional information and documents, but that the Tribunal made its decision in a hurry without waiting for him. He claimed that he had subsequently received documents in support of his claims.
In the Tribunal’s account of what occurred in the Tribunal hearing it recorded that the applicant said that he had documents in Chinese from his father’s church and neighbour and that originals were on their way to him. The Tribunal agreed to allow him time to produce the originals and get the documents translated. The Tribunal also recorded that at the end of the hearing it “allowed the applicant further time to provide translations of the documents he had produced”.
The Tribunal hearing was held on 7 July 2009 and the Tribunal recorded that on 27 July 2009 it received further documents from the applicant, including the documents described in its reasons for decision as a document headed “Testimony” in relation to the applicant’s father, a document from someone said to be the applicant’s father’s neighbour, and another document described as being written by a female person, stating that the applicant’s father was a Christian, as well as a copy of the applicant’s Homestay accommodation profile in Australia and “two photographs of the applicant described as attending baptism on 19 July 2009 and at the front of [a Christian] church in Sydney”. The Tribunal decision was dated 31 August 2009.
Insofar as the applicant’s submissions and grounds address these matters, it is clear that the Tribunal allowed time for the provision of original and translated documents as requested, that the applicant provided further documents and that the Tribunal took these documents (and other material provided by the applicant) into account in its reasons for decision. Insofar as the applicant intended to contend more generally that he had asked the Tribunal for additional time to provide documents and information and that such request was refused, there is no evidence before the court in support of any such contention. Nor is there any evidence before the court that that the applicant made any request in writing to the Tribunal for such further time after the hearing.
The complaints that the applicant makes in this respect are not made out on the evidence before the court. In particular I note that there is no transcript of the Tribunal hearing before the court to support the claims that the applicant makes today in relation to a request for additional time, notwithstanding the consent orders signed by the applicant at the directions hearing on 15 October 2009 in relation to the filing of evidence, including any transcript of the Tribunal hearing.
Ground one and the issues that the applicant raised in relation to ground one in oral submissions today do not establish jurisdictional error.
The second ground deals with the applicant’s claim that he became a genuine Christian in Australia and takes issue with the fact that the Tribunal said that he did this to strengthen his claim to be a refugee. As indicated, insofar as the applicant takes issue with the Tribunal’s finding in this respect, he seeks impermissible merits review.
Insofar as this ground raises an issue in relation to the Tribunal’s application of s.91R(3) of the Migration Act, the applicant contended that in reaching such a subjective conclusion in rejecting his claims, the Tribunal was unfair, as he had provided evidence to prove that he was a pious Christian. He submitted that if the Tribunal felt he needed additional evidence, then the Tribunal should have requested it and should not have completely ignored the evidence that he provided.
First, as the Tribunal recorded, in the Tribunal hearing it explained s.91R(3) of the Act to the applicant and that under s.91R(3) of the Act, the practical burden is on the applicant. The Tribunal accepted that, consistent with the evidence that he provided after the hearing, the applicant had attended a specified Christian church in Sydney (at which he was photographed) and a baptism on 19 July 2009 and that he had learned principles and details of Christianity which he related to the Tribunal. It was, however, open to the Tribunal not to be satisfied on the evidence before it that the applicant had engaged in the activities of attending the Christian church and learning about Christianity otherwise than to strengthen his claim to be a refugee. There is nothing in the material before the court to indicate that the Tribunal failed to proceed in accordance with s.91R(3) of the Act in reaching this conclusion.
More generally, insofar as the applicant complained that if the Tribunal did not accept his claims, or felt that he needed additional evidence, it should have informed him of this, it is apparent from the Tribunal’s account of the Tribunal hearing that it raised with the applicant dispositive issues as required under s.425 of the Act. It put to the applicant its concerns in relation to aspects of his claims and the supporting information. The Tribunal discussed with the applicant documents he had produced in relation to his activities in Australia. It indicated that it would have to decide what weight to give to such documents. The Tribunal also put to the applicant that it would have to decide whether what he was saying about the documents he provided in support of his claims about his father’s activities in China were true.
At the hearing the Tribunal also raised with the applicant that it may not accept the applicant’s explanation for conflicts within the photographs and other evidence that he had provided. In its reasons for decision, the Tribunal considered the explanations provided by the applicant for conflicts in his evidence.
The weight to be attributed to evidence is a matter for the Tribunal, and it was open to the Tribunal to proceed as it did, having met its obligations under s.425 of the Act. The Tribunal is under no obligation to put its provisional reasoning to the applicant under s.424A of the Act. Nor was the Tribunal obliged to give the applicant an opportunity to provide additional information if it was not satisfied on the material before it. Ground two is not made out.
Insofar as the applicant complained generally that the Tribunal should have made more allowance for him at the hearing in light of his youth, there is nothing in the material before the court to indicate a lack of procedural fairness or that the Tribunal fell into error in the way in which it conducted the hearing. I note in that respect that one aspect of the applicant’s explanation for his failure to refer to his own Christianity in the protection visa application was a claim that he was not confident in filling in the form. The Tribunal specifically considered but rejected that explanation, having regard to the material that was provided by the applicant and his knowledge of the relevance of Christianity at that time.
The applicant contended that the Tribunal should not have made its decision based on what he described as “subjective assumptions” on its part. It is well-established that it is for an applicant to advance whatever evidence or argument he wishes to advance in support of his claims and for the Tribunal to then decide whether the claim is made out (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14). While the Tribunal must consider substantive issues raised by the evidence, it need not make good an applicant’s claims.
This is not a case in which the evidence is such as to establish that the Tribunal was under an obligation to make further inquiries (see SZIAI). The Tribunal’s failure to accept the applicant’s explanation for the conflicts in the photographs he had provided or for other issues about his evidence is not such as to establish jurisdictional error.
More generally I accept that, as the first respondent submitted, the Tribunal’s rejection of the genuineness of the letters that the applicant submitted with his protection visa application was a finding of fact that was open to the Tribunal in light of its consideration of the applicant’s explanations for the presence of signed and dated copies of letters he claimed to have posted to his father (or to his parents) in China. Moreover, based on its general rejection of the applicant’s credibility for the reasons it gave, it was open to the Tribunal to reject other corroborative documents on the basis that the applicant was not a credible witness. See Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30.
Similarly, the Tribunal’s lack of satisfaction that the photographic evidence was probative evidence that the applicant’s father had become a Christian, or of his claims about what occurred in China, was open to the Tribunal as a question of fact to be determined by the Tribunal on the material before it.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.
Before I make the orders I will hear submissions in relation to costs.
RECORDED: NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the first respondent. The applicant told the court that he had limited financial resources and ability and could not afford a costs order of the nature sought. However this is not such as to warrant a departure from the normal rule, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. I am of the view that the amount of $4,000 is appropriate, having regard to the nature of this and other similar matters.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 17 March 2010
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