SZNYF v Minister for Immigration
[2010] FMCA 303
•6 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNYF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 303 |
| 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); 65(1)(b); 91R; 424A; 474; pt.8 div.2 |
| NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| First Applicant: | SZNYF |
| Second Applicant: | SZNYG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2334 of 2009 |
| Judgment of: | Emmett FM |
| Hearing dates: | 16 February 2010 & 16 April 2010 |
| Date of Last Submission: | 16 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Ower |
| Counsel for the Respondent: | Mr P. Reynolds |
| Solicitors for the Respondent: | Mr R. Baird, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2334 of 2009
| SZNYF |
First Applicant
| SZNYG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 25 August 2009 and handed down on 26 August 2009.
Both applicants claim to be citizens of the People’s Republic of China (“China”) and of Catholic faith. The first applicant is the wife of the second applicant. The second applicant’s claims are dependent on those of the first applicant. I shall refer to the first applicant as the Applicant.
The Applicant arrived in Australia on 13 December 2008, having departed legally from Guangzhou on a passport issued in her own name for which she claimed to have paid a bribe and a TR-676 (Tourist) visa. The second applicant arrived in Australia on 22 November 2007 on a passport issued in his own name and a TU-580 (Student Guardian) visa.
On 20 January 2009, the applicants lodged an application for protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 29 April 2009, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas.
On 27 May 2009, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 25 August 2009, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 23 September 2009, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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 s.65(1)(b) mandates that the visa application is to be refused.
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”).
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.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s protection visa application
The Applicant provided a statement in support of her protection visa application in which she stated that the she feared persecution by the Chinese authorities by reason of her practice of Christianity at an unregistered church in China. The Applicant also claimed she had been forced to have an operation to fit a birth control device and, when she fell pregnant with her second son, she went into hiding but was found and “taken to hospital to undertake operation” from which she escaped and hid at a relative’s place until her son’s birth.
The Applicant claimed that the family’s involvement with the Catholic Church began in June 1989 through a friend of her mother-in-law. She claimed the church was not protected by law and services were always held in different places.
In October 2006, the Applicant claimed a church meeting was raided by police. She claimed worshippers were beaten by police when they tried to protect the priest, then their details taken and a warning given to only attend official churches.
The Applicant claimed that, following the raid, she was harassed by local officials who visited her home unexpectedly.
The Applicant claimed she was treated differently at work as a result of having been recorded by police. She stated that she was threatened with termination if she behaved “inappropriately”.
The Applicant claimed she and the second applicant had considered leaving China since mid-2007. However, she stated that the local government refused to issue the documents needed for her passport because of her police record. The Applicant stated that she had to bribe two officials to obtain her passport, which took over a year.
She stated that she has attended church in Australia since arriving in December 2008.
The Delegate’s decision
On 31 March 2009, the Applicant attended an interview with the Delegate.
On 29 April 2009, the Delegate refused the applicants’ application for protection visas 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
On 27 May 2009, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 19 June 2009, the Tribunal wrote to the applicants informing them 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 applicants to attend a hearing on 23 July 2009 to give oral evidence and present arguments. The applicants provided further documents in support of their application, including a further statement from the Applicant, dated 10 July 2009.
On 23 July 2009, the applicants attended the Tribunal hearing and gave evidence.
On 30 July 2009, the Tribunal wrote to the applicants identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicants to comment upon it (“the s.424A Letter”).
On 19 August 2009, the Applicant responded to the s.424A Letter.
The Tribunal noted that it had before it the Department’s file, material referred to in the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the Applicant was not a witness of truth.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“12) The wife indicated that she had suffered a head injury in mid-2008 that caused her headaches and memory loss, and gestured towards her head on several occasions. However, she produced no medical certificates and when asked about the injury downplayed it. The Tribunal found that she did not suffer any head injury that affected her evidence ([79]).
13) The Tribunal found that the October 2006 incident did not occur ([80]):
a) both Applicants struggled to give meaningful and consistent information beyond the main integers of this claim. For instance, the husband had ‘no idea’ what time the alleged raid had occurred and the wife struggled to recall the time of day;
b) the Applicants were evasive about other aspects of the claim;
c) the Applicants gave conflicting information as to where the raid had occurred;
d) the Tribunal was unimpressed by the wife writing notes before the husband gave evidence and attempting to show him those notes;
e) the Tribunal was dubious of the husband’s claim that he had learnt of the raid only several days after it occurred.
14) The Tribunal rejected the other instances of past harm and threats referred to by the wife on the basis that her conduct in China was inconsistent with that of a person who genuinely feared persecution or other harm ([81]):
a) the departure of the wife appeared planned and unhurried;
b) while it was plausible that a person of interest might try and keep a low profile and explore departure options while other family members went abroad first, the Tribunal did not accept that this is what had occurred:
i) it did not accept that the police had the wife’s details because it had rejected the claim concerning the October 2006 raid;
ii) the wife delayed applying for her Australian visa for 9 months after the grant of her passport;
iii) the wife delayed in applying for protection after arriving in Australia.
15) The Tribunal did not accept that the Applicant was a genuinely practicing Catholic in an unregistered Church in China ([82]):
a) its findings in relation to the October 2006 raid and the Applicant’s departure from China cast doubt on her credibility as a whole;
b) the wife’s knowledge of the Catholic faith was limited and confused;
c) the wife was not able to provide location-specific information, such as her alleged priest’s name and his place of origin. She appeared to have visited a church, but her evidence was too general to demonstrate that her knowledge was referrable to past experiences;
d) document fraud was prevalent in China and the baptism date of 2005 in her certificate was at odds with her claim to have converted in 1989. It accordingly considered her baptism certificate unreliable;
e) it placed little weight on the supporting statements of various people in China given that it had concerns as to their ability to remain in China, to be contactable and to write statements critical of local authorities. It also had doubts as to their impartiality.
16) The Tribunal took into account the Applicant's evidence that her husband and son attended church in Australia, a year before her arrival, in considering whether she had practiced in China. However, the evidence did not satisfy it in this regard. It found that the husband and son did not attend church until the wife arrived in Australia. On the basis of this finding and the other findings outlined in [76] - [82], the Tribunal found that the Applicant was not a practicing Catholic in an underground Church in China..
17) The Tribunal disregarded the wife’s church attendance in Australia pursuant to section 91R(3) of the Act because it was not satisfied that the wife had engaged in such conduct otherwise than for the purpose of strengthening her claim to be a refugee. Further, due to limited nature of the husband and son’s conduct in Australia (in time and scope), it did not consider that their conduct would put the wife at risk ([87]-[90]).
18) Additionally:
a) the Tribunal considered that wife’s recent loss of employment was unexceptional given that she had failed to return to China ([91]);
b) the Tribunal did not give weight to the Summons provided by the Applicant because of country information referring to the prevalence of document fraud, the fact that the Summons appears to have been issued prior to the Applicant’s departure, whereas she was not detained or in hiding, and its adverse view of the Applicant’s credibility ([92]-[94]);
c) in relation to the claims relating to China’s family planning laws, the Tribunal accepted that she may have suffered past harm, but the Applicant indicated that she did not fear prospective harm ([97]);
d) the Tribunal also did not accept a claim by the wife that the Chinese authorities would presume that she had claimed protection and that she had a well founded fear of persecution as a consequence ([98]).”
The proceeding before this Court
On 16 October 2009, the applicants attended a directions hearing before me. On that occasion, I explained to the applicants that the only ground of their application did not disclose an error capable of review by this Court. I explained that it was not for this Court to reconsider their claims and make different factual findings or reach different conclusions. I explained that the role of the Court is very different to that of the Tribunal and that it was concerned only with whether or not the decision of the Tribunal was affected by a mistake that goes to the Tribunal’s jurisdiction. I explained that rarely was disagreement with the Tribunal’s decision, by itself, sufficient to establish such an error.
The applicants confirmed that they wished to continue with their application. Accordingly, the applicants were 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, including any transcript upon which they may seek to rely. The applicants were also referred to the Court’s legal advice scheme for free legal advice and were provided with the contact details of legal services providers and interpreting and translation services in documents headed in their own language. No further document was filed by the applicants in accordance with those directions or otherwise.
At the commencement of the hearing before this Court on 16 February 2010, the Applicant was unrepresented, although had the assistance of a Mandarin interpreter. The Applicant confirmed to the Court that she was representing both herself and the second applicant and confirmed that his claims were dependent on hers.
The Applicant confirmed that the applicants relied on the ground of the application which stated, “I was not considered fairly by RRT”.
The ground was interpreted for the benefit of the Applicant and she was invited to say whatever she wished in support of that ground and in support of her application generally.
The Applicant told the Court that all the information that she had given to the Tribunal was true but that the Tribunal had said that her answers were evasive and confused and that she did not know why the Tribunal had that impression. The Applicant complained that the Tribunal had mistakenly decided that her husband and son had not attended church until the Applicant arrived in Australia. In support of that assertion she referred to a letter from a priest saying that her husband had attended church in 2008 in Australia before the Applicant came to Australia. The Applicant also complained that the Tribunal had found a document that she gave the Tribunal in support of her alleged persecution in China to be false. She also said that the Department had believed that she was a genuine Catholic, whereas the Tribunal had not.
In relation to the Applicant’s complaint that the Department had believed she was a genuine Catholic, whereas the Tribunal had not, counsel for the First Respondent conceded that there was no direct mention in the decision record of that issue having been put by the Tribunal to the Applicant at the hearing or in writing in the Tribunal’s s.424A Letter.
However, counsel submitted that the Court could not infer from the absence of the Tribunal’s decision record that it was not an issue that had been put by the Tribunal to the Applicant. In support of that submission, counsel referred to NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ, where their Honours noted that there was no transcript or affidavit before the trial Judge as to what had occurred before the hearing. Mr Reynolds did not specifically refer to NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, where the High Court found that a tribunal’s decision record alone is evidence of what happened at the hearing. However, Mr Reynolds did refer the Court to SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911where those cases were discussed.
I explained to the Applicant that at the moment her application did not assert or particularise any of her oral complaints. I explained that if the matter was adjourned to allow her a further opportunity to file and serve an amended application and any evidence in support, and she was ultimately unsuccessful, any costs order made against her may be increased by reason of any adjournment. I also explained to her that, if costs were ordered against her and she was unable to pay those costs, the costs become a debt to the Commonwealth of Australia. As such, that may affect her ability to obtain any other type of visa or re-enter Australia. I also explained to the Applicant that if she wished to rely on a transcript of the hearing, she would need to have it prepared and verified by affidavit. The Applicant confirmed to the Court that she wished to have the adjournment in order to file and serve such documents. I also provided the Applicant with the contact details of legal services providers and interpreting and translating services in documents headed in the Applicant’s own language.
I then made orders adjourning the hearing and directions giving the Applicant a further opportunity to file and serve an amended application giving complete particulars of each ground of review relied upon and any further evidence, including any transcript of the Tribunal hearing. The applicants were also directed to file and serve written submissions in support of any amended application and the First Respondent was directed to file and serve any amended response, any further evidence and written submissions in response.
On 15 March 2010, the applicants filed an amended application and, on 25 March 2010, the applicants filed a copy of a transcript verified by affidavit, together with written submissions.
At the recommencement of the hearing on 16 April 2010, the applicants were represented by Mr Ower, of counsel. Mr Ower informed the Court that the only ground upon which the applicants relied was ground 1 of the amended application. Mr Ower confirmed that the applicants no longer relied on ground 2 of the amended application and formally withdrew that ground. In the circumstances, the only ground before the Court was as follows:
“The Second Respondent failed to afford procedural fairness to the Applicants
Particulars
a)The Second Respondent discounted the Applicant wife’s baptismal certificate as a forgery and this formed part of the reason for the Second Respondent rejecting the Applicant’s claim that she had practised as a Catholic in China. The Applicant was not given any opportunity to comment on this potential finding. In the context of no doubts being raised previously by the First Respondent, this constituted a denial of procedural fairness.”
To the extent that ground 1 alleges that the Tribunal “discounted the Applicant wife’s baptismal certificate as a forgery”, the transcript and the Tribunal’s decision record make clear that no such finding was made.
Relevantly, the Tribunal Member said to the Applicant:
“Now I need to alert you I will need to think carefully about this document. There is a high incident of document fraud in China. That means for every document I need of course to look very carefully and see what weight I give any documents. I might think it curious that a person who is in an unregistered church gives their telephone number and their location. And I might also think it curious that someone who has been in the church since 1989 was not baptized until 2005.”
In its decision record, the Tribunal stated as follows:
“Against the background of country information about document fraud in China [para 75], which the Tribunal put to the applicants at the hearing, the Tribunal considers that the Gaoshan Town Catholic Church statement confirming the applicant’s baptism in 2005 is problematic. The applicant wife appeared surprised by the date 2005, and at a loss as to how to reconcile this with her basic claim of having converted in 1989. The Tribunal considers that not just the date ‘2005’, but the entire contents of that document, are unreliable. It therefore places no weight on this document as evidence of a baptism, or of any other association with the Catholic Church in Fujian.” (Emphasis added).
It is clear that the Tribunal raised with the Applicant its concern about the baptismal certificate, in light of the country information before it of the prevalence of document fraud in China. The Tribunal Member said that it would need to “look very carefully and see what weight I give any documents.” The Tribunal also put to the Applicant that it found it curious that the priest, who was alleged by the Applicant to have provided the baptismal certificate, readily provided the telephone number and location of the unregistered church on the face of the baptismal certificate. The Tribunal also put to the Applicant, its concern about the Applicant’s claim to have been a member of the church since 1989, although not baptised until 2005.
In reading the transcript, it is apparent that the Applicant’s claim not to have been baptised until 2005, yet a member since 1989, remained of concern to the Tribunal, in circumstances where the Applicant claimed that she “did the confession” from 2001. The Tribunal clearly put to the Applicant its concern that, in the Catholic Church, confession does not start until a person is baptised and that it is “only after you are baptised do you normally go to confession.” The Tribunal Member explored this issue with the Applicant and accurately summarised its exchanges in its decision record. The baptismal certificate was given to the Tribunal in support of her claim to have been baptised. The Tribunal understood that was the purpose of the document and was entitled to consider its evidentiary weight in the light of the country information before it. It is a matter for the Tribunal the country information to which it has regard and the weight it gives that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11] per Gray, Tamberlin and Lander JJ).
The transcript made clear that the Tribunal doubted the Applicant’s claim to be a Catholic in light of the circumstances of her alleged baptism and her allegation of going to confession some 4 years before she claimed to have been baptised. The Tribunal specifically put to the Applicant “that seems very unusual if you are a member of the Catholic Church which is not part of the official church in China but it is part of the Roman Catholic Church which has links with the Vatican.” (Emphasis added).
The Tribunal was entitled to have regard to the country information about document fraud in China and to find that that information undermined the weight that the Tribunal may otherwise give the baptismal certificate. Moreover, in the context of what the Tribunal found to be the unsatisfactory nature of the Applicant’s evidence about her baptism and Catholic practices and the concerns it had on the face of the certificate (see paragraphs 45 and 47 above), it was open to the Tribunal on the evidence and material before it, to place no weight on the baptismal certificate as corroborative evidence of the Applicant’s claim to have been a practising Catholic in an unregistered church in China. Ultimately, the Tribunal found the Applicant not to have been a practising Catholic in an unregistered church in China.
In the circumstances, it was open to the Tribunal to find the baptismal certificate unreliable and to determine what weight it placed upon it, including none, and for the reasons it gave. The Tribunal did not find the baptismal certificate to be a forgery and I do not accept Mr Ower’s submission that the Tribunal’s findings amounted to such a finding.
Accordingly, ground 1 is not made out.
Following the completion of the First Respondent’s submissions, counsel for the Applicant, Mr Ower, sought leave to expand the Applicant’s ground to include a complaint that the Tribunal had not raised with the Applicant that it may find that she was not a practising Catholic in an underground church in China. Mr Ower commenced to reduce this further complaint to writing in order to seek leave of the Court to amend the amended application.
Ultimately, leave was refused having regard to the utility in allowing the amendment and having regard to the opportunities already afforded to the Applicant to identify the grounds upon which she relied.
In my view, in light of the transcript, the Applicant had no, or no reasonable, prospect of establishing that the Applicant was not on notice of the Tribunal’s concerns about her alleged Catholicism in China. A fair reading of the transcript makes clear that many of the matters it sought to explore with the Applicant only arose because of the concern it had about the Applicant’s claim to have been a practising Catholic in an underground church in China.
In the circumstances, having regard to the principles referred to in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165-166, the transcript makes clear that the Applicant was, at least, provided with an opportunity to expand upon her claims to have been a practising Catholic in an underground church in China and to explain why those claims should be accepted.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about the evidence, both orally at the hearing and in writing, and noted the applicants’ responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
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.
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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 6 May 2010
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