SZNYI v Minister for Immigration
[2009] FMCA 1170
•25 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNYI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1170 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in China – applicant not believed – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A, 425 |
| Minister for Immigration v Jia Legeng (2001) 205 CLR 507 VCAK of 2002 v Minister for Immigration [2004] FCA 459 WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277 |
| Applicant: | SZNYI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2338 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 25 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2338 of 2009
| SZNYI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 24 August 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of religious persecution. Background facts relating to the applicant’s claims and the Tribunal’s decision on them are set out in the Minister’s written submissions filed on 10 November 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through to 8 of those written submissions:
The applicant is a citizen of the People’s Republic of China who arrived in Australia on 5 April 2008: court book (“CB”) 15. He lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship on 25 March 2009: CB 1-28. His application contained written claims outlining the basis of his claim to fear harm in China: CB 19-21. On 31 March 2009, the applicant also provided, through his migration agent, a statement of his claims, together with country information: CB 43- 53. On 22 April 2009, the applicant submitted a certificate from the Catholic Fuzhou Archdiocese dated 13 April 2009: CB 64-65. The applicant also attended an interview before a delegate of the Minister on 23 April 2009: CB 73.6, 80.9-81.6.
The applicant claimed to fear harm from the authorities in China because of his membership of an underground Roman Catholic Church. He claimed his family had been devoted Catholics for generations and that he had been raised as a Catholic. He claimed his parents had been detained and mistreated because of their attendance at an underground Church and that he was interrogated by a PSB officer at his school because his parents were known to the authorities as members of the underground Church. The applicant was forced to leave school as a result. The applicant claimed to have attended Church ‘one or two times’ in Australia.
In a decision dated 28 April 2009, the Minister’s delegate refused to grant the applicant a protection visa: CB 73-82. The delegate found that the applicant could not be ‘considered a Catholic at all, whether in name or in practice’: CB 81.4. The delegate found that in light of the applicant’s lack of religious affiliation or conviction, he would not face persecution upon return to China for reasons of his religion: CB 81.5.
The Tribunal proceedings and decision
On 26 May 2009, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 83-86.
By letter dated 15 June 2009, sent by fax to the applicant’s authorised recipient, the Tribunal invited the applicant to attend a hearing on 30 July 2009: CB 90-94. That applicant accepted that invitation (CB 95-96) and attended the hearing: CB 115, paragraph 49.
The Tribunal ultimately did not accept that the applicant was Catholic, had been brought up in a Catholic family or was a member of an underground Church in China: CB 126, pars 115-116. The Tribunal had numerous concerns with the applicant’s evidence. For example, his evidence that he had not been baptised despite coming from a family with generations of devout Catholics (CB 125, paragraph 107) and his demonstrated lack of understanding about his claimed religion: CB 125, paragraphs 108-111. It also noted that the applicant could not explain how despite his claimed difficulties with the authorities he was able to depart China on a passport issued in his own name: CB 125, paragraph 112. The Tribunal concluded that the applicant had fabricated his claims in order to obtain a protection visa: CB 126, paragraph 115.
Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention related reason and affirmed the delegate’s decision: CB 127.
These proceedings began with a show cause application filed on 24 September 2009. The applicant continues to rely upon that application. There are three grounds in the application which assert a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) by the Tribunal, a breach of s.425 of the Migration Act and a failure by the Tribunal to properly assess the applicant’s claims, which I take to be an assertion of a constructive failure by the Tribunal to exercise its jurisdiction. The applicant provides particulars to these grounds in narrative form in a document attached to this application. Those grounds are:
1. [Tribunal] clearly failed to comply with its obligations under s.424A of the [M]igration [A]ct by writing to the applicant to invite him to comment to information used to reject his claim.
For example, in the [Tribunal’s] reasoning in paragraph 119, “based on the independent information available”, [Tribunal] failed to outline to the applicant why the information is relevant and gave the applicant to comment in writing, thereby failing to give the applicant natural justice and procedural fairness.
2. [Tribunal] failed to properly assess the applicant claims, particularly whether the applicant can be assessed under the “special social group” or at least it failed to clearly or explicitly indicate or explain it is finding or reasoning that it had done do before rejecting the applicant’s claims.
Actually, [Tribunal] member single-mindedly focused on assessing the applicant claim on “[C]atholic” ground (religious ground) and the whole session became a “test” of in-depth [C]atholic knowledge test. While on numerous occasions, the applicant has indicated to [Tribunal] that he is worried of persecution (showed in his school experience) particularly because of his parents. [Tribunal] member simply failed to assess this respect in a proper way (although it can still reject it finally but the reasoning of the finding was non-existent in the decision itself), ie “special social group” under the Convention reason. It says it “also” considered it para. 118 but the reasoning process was simply not there.
3. In connection with the above point, [Tribunal] has judicious error in failing to exercise its power in making necessary further inquiry about the key (actually the only) corroborative evidence in the hearing. The High Court has now made it clear that the Tribunal could have obtained this evidence without imperilling itself; SZKTI supra. If the other side had answered and satisfied the Tribunal of its bona fides, the Tribunal would have had to consider the evidence.
On the other hand, while [Tribunal] indicates it may be fraudulent nature whatsoever, it should have asked itself the right question or at least be “open-minded” to think that if the document was fabricated, the document itself may easily stated the applicant is “baptised” or things to that effect rather than a modest, “sounds-more-reasonable” way. Despite the applicant’s repeated proposal for [Tribunal] to make inquiry as needed, in particular, in the context that this is a case that generally the applicant overall credibility is not “highlighted” as a[n] issue (he confirms he is not baptised as stated in the evidence) and the his parents circumstances can be very critical in the case, [Tribunal] only handled this request in a perfunctory and very subjective way, thereby failing to give the applicant proper procedure fairness and natural justice.
4. In para.108, [Tribunal’s] reasoning and finding that the “fundamental misunderstanding” by “his father” led to [Tribunal’s] belief that the applicant father is “not a Catholic”. This is another typical example of close-mindedness and lack of procedure fairness as it could well be the father have told something to the son (the applicant) correctly, the son being young kid at that stage who simply misunderstood/or wrongly recall what his father had “correctly” told him. Such a way of inference is just very unfair and biased, particularly when the applicant’s father’s circumstance is highly critical in this case.
5. [Tribunal] decision is also affected by proper compliance of s.91R(3) of the Act.
The application was supported by an affidavit which repeats grounds 1 and 2. I received that affidavit as a submission.
I have before me as evidence the court book filed on 13 October 2009.
The applicant, in his submissions, simply asserted that the Tribunal decision was not fair. It is clear that he disagrees with the outcome of his case before the Tribunal but, while he is concerned about the merits of the Tribunal decision, he was unable in submissions to engage with any relevant legal issues. The Minister’s submissions comprehensively address the legal issues arising from the application. In particular, the Minister submits:
The first purported ground of review asserts that the Tribunal breached s.424A of the Migration Act. Particular one asserts that the Tribunal breached its obligation under s.424A by failing to invite him to comment on ‘independent information’ that was referred to by the Tribunal. The Tribunal recorded in its decision extracts from country information it had reviewed in relation to Catholics in China and the availability of fraudulent documents: CB 121, par 99 – CB 124, par 103. General country information of the kind to which the Tribunal referred falls within s.424A(3)(a) and is not required to be disclosed under s 424A(1) of the Act. Section 424A(3)(a) of the Act exempts from the duty of disclosure information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”.[1] As the Tribunal had no duty to disclose to the applicant the country information to which it had regard, the first ground of review must fail.
[1] Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [66] – [71] per Beaumont J, at [138] per Merkel and Hely JJ
The second ground of review alleges that the Tribunal ‘dealt with corroborative evidence in a manner that contravened s.425 of the Act. The ‘particulars’ do not appear to relate to the alleged breach of s.425 of the Act but particular three does allege that the Tribunal should have made enquiries in relation to his ‘corroborative evidence’.
Before the Tribunal the applicant had relied on a letter purportedly from the Catholic Archdiocese in China, which had been provided to the delegate: CB 65. Particular three contends that the High Court made it clear in MIAC v SZKTI[2], that the Tribunal could have obtained such evidence without ‘imperilling itself’ and that the applicant repeatedly ‘proposed’ that the Tribunal make enquiries in relation to this letter. There is no evidence to support the contention that the applicant ‘repeatedly’ proposed that the Tribunal make enquiries, but instead the Tribunal decision records that the applicant said during the hearing that the Tribunal ‘could ring the number of the Church on the letter’: CB 120, par 94.
The Tribunal decision records that the member declined to call the contact numbers provided on the letter and explained to the applicant why. The Tribunal found it would have had no way of verifying to whom it was speaking and it would not have satisfied the Tribunal that the letter was probative evidence in support of the applicant’s claims: CB 126, par 114.
The Tribunal ultimately gave the letter ‘no weight’ because it considered that the document could have been easily fabricated. The Tribunal found it unusual that the letter would contain ‘full contact details of the head underground Church that was illegal in China’: CB 126, par 114.
The Tribunal was under no obligation to make enquiries such as ringing the contact numbers indicated on the letter. It had no duty to investigate or to consider utilising such permissive statutory powers as it had which might enable it to investigate.[3] Moreover, there is no evidence before the Court to indicate what information might have been elicited if the Tribunal were to undertake the inquiry which the applicant now contends should have been made.[4] Accordingly, there would be no factual basis for a finding that the failure to inquire constituted a failure to undertake the statutory duty of review.
The Tribunal decision indicates that the Tribunal raised its concerns in relation to this document with the applicant on two occasions during the Tribunal hearing: CB 118, pars 75-76, CB 120-121, par 94. The Tribunal also warned the applicant that in light of its concerns about the document it could decide to place no weight on the matter. Accordingly, the Tribunal satisfied s.425(1) in the manner outlined in SZBEL[5] by ensuring that the applicant at the hearing was ‘sufficiently’ alert to this issue. For these reason, the second ground of review must fail.
The third ground of the application alleges that the Tribunal decision is affected by errors as the Tribunal failed to ‘properly’ assess the applicant’s claims. This allegation is repeated in particular two, which also alleges that the Tribunal failed to assess whether the applicant belonged to the ‘special social group’.
This ground and particular essentially seek merits review. The Tribunal considered the applicant’s claim to fear harm as a Catholic and because of his membership of an underground Roman Catholic Church. The Tribunal also considered the applicant’s claim that his family had been devoted Catholics for generations and that he had been raised as a Catholic. The Tribunal ultimately did not accept that the applicant was Catholic, had been brought up in a Catholic family or was a member of an underground Church in China. In light of these findings, the Tribunal was not obliged to consider whether any harm feared by the applicant was for the reason of his membership of a particular social group. Accordingly this ground must fail.
Particular four raises a further allegation, namely that the Tribunal’s reasoning displayed ‘close-mindedness’ and bias. The applicant has made no attempt to comply with the requirement that it be firmly and distinctly made and clearly proven.[6] In the absence of any evidence, this ground cannot be established. The decision record indicates that the applicant was provided with an opportunity to give evidence and present arguments at the hearing. The material before the Court does not provide any foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith. The findings of fact made by the Tribunal in rejecting these claims and concluding that the applicant did not face a real chance of persecution if he returned to China now or in the foreseeable future for reasons of religion or for any other Convention reason were findings of fact that were open to it on the evidence for the reasons given.
Finally, particular five alleges that the Tribunal decision is ‘affected by proper compliance of s.91R(3) of the Act’. The Tribunal accepted that the applicant had attended Church services once or twice in Australia, but in light of the concerns it had with his evidence, found that this conduct was engaged in for the purposes of strengthening his claim to be a refugee: CB 126-127, par 120. The Tribunal disregarded this conduct pursuant to s.91R(3).
The s.91R(3) finding was a factual matter for the Tribunal and as the conduct was not taken into account to find that the applicant had a well-founded fear of persecution, no breach of this section can be established in light of the recent High Court decision in Minister for Immigration & Citizenship v SZJGV.[7]
[2] (2009) 258 ALR 434
[3] VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 at [74]-[78]
[4] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [26]-[27]
[5] SZBEL v Minister for Immigration and Multicultural Affairs (2006) 231 ALR 592 at [42]-[44]
[6] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J
[7] (2009) 259 ALR 595
I agree with the Minister’s submissions. There is no substance to any of the grounds or particulars advanced by the applicant. There was no breach of s.424A of the Migration Act as asserted by the applicant. He refers to the Tribunal’s reliance upon country information concerning the treatment of Catholics in China but there was no obligation on the part of the Tribunal to disclose that information to him pursuant to s.424A[8].
[8] See s.424A(3)(a)
Neither was there any breach by the Tribunal of s.425. The applicant was validly invited to a hearing before the Tribunal and attended with the assistance of an interpreter. The applicant should have been aware at the hearing of the essential and significant issues on which the review would turn. The hearing opportunity was a fair one. Neither was there any constructive failure on the part of the Tribunal to exercise its jurisdiction. The Tribunal rejected corroborative evidence submitted by the applicant because it was concerned with that corroborative evidence on its face and because of the Tribunal’s other concerns about the applicant’s evidence. In short, the Tribunal concluded that the applicant had fabricated both his claims and probably the document which he advanced to corroborate them. The Tribunal’s adverse credibility conclusion was open to it on material before it.
The applicant had invited the Tribunal to check the veracity of the letter he had submitted as corroborative evidence and the Tribunal declined to do so. The Tribunal was under no duty to do so and its reasons for declining to exercise its discretion to do so were rational and open to it. There was nothing to support the allegation of bias. The Tribunal’s approach to the application of s.91R(3) of the Migration Act was an orthodox one on the state of the law as understood at the time of the Tribunal’s decision. In my view, there is nothing in the High Court’s decision in Minister for Immigration v SZJGV to cast doubt upon the validity of the Tribunal’s approach.
The applicant is self-represented and I have myself considered whether there may be any issue of jurisdictional error apart from those raised in the application. I can see none.
I conclude that the Tribunal decision is a privative clause decision and in consequence the application must be dismissed. I so order.
Costs should follow the event in this case. The minister seeks an order for costs fixed in the sum of $4,300. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,300.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 December 2009
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