SZNZN v Minister for Immigration
[2010] FMCA 323
•13 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNZN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 323 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) or to take into account corroborative material in a manner constituting jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R, 424AA, 424A |
| Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXO and Another (2009) 238 CLR 642; [2009] HCA 40 Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 |
| Applicants: | SZNZN & SZNZO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2596 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 25 & 26 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2010 |
REPRESENTATION
| Applicants: | In person |
| Counsel for the First Respondent: | Mr D G Healey |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2596 of 2009
| SZNZN & SZNZO |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 28 September 2009 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, citizens of the People’s Republic of China, arrived in Australia in October 2007 and applied for protection visas in November 2007. The second applicant’s claim for protection was based solely upon her membership of the first applicant’s family and for convenience references to the applicant hereafter are references to the first applicant.
In connection with his protection visa application the applicant claimed that he was born in Fuqing City, Fujian Province in the PRC. In 1998 he and his wife relocated to Beijing. He claimed that his wife was a Christian, that he began to participate in church activities when in Beijing and that he was baptised on 11 August 2001. He claimed that he had suffered and feared persecution because of his involvement in and attendance at his local family church.
The applicant claimed that on 1 April 2007, when a church gathering was held at his home in Beijing, he was detained by Public Security Bureau (PSB) officers with fellow attendees, although his wife who was also at home was not detained. He claimed that he was detained for 14 days, interrogated and assaulted, and that on release he returned to Fujian Province where he continued to participate in church meetings. He claimed that after he was released from detention the stall he and his wife operated was forced to close. The applicant also claimed that after his release from detention he received two summonses from the local police station and was told he was to report to the police station immediately.
The applicant claimed that after his release family members in Moscow invited him to visit Russia, which he did. He claimed that he tried to apply for protection in Russia but that his application was not accepted and that his sister-in-law in Australia then suggested that he come to Australia where his son was studying.
The applicant claimed that in Australia he had been attending family church meetings. He claimed that if he returned to China he would continue with family church activities and would suffer persecution from the authorities.
In support of his protection visa application the applicant provided the Department with copies and translations of documents described as a “Notice to the family member of the detainee” about his detention dated 1 April 2007, a “Checklist” of items seized on that date, a release certificate from the PSB dated 14 April 2007, a “Notice” ordering that operation of business at the applicant’s market stall cease “for his involvement with illegal religious activities”, medical records for the applicant dated 14 April 2007 and a medical report of that date referring to a claimed assault 14 days earlier.
The applicant attended a Departmental interview in which he claimed that he belonged to the Recovery Church and elaborated on aspects of his claims.
The Department wrote to the applicant’s migration agent on 25 March 2008 seeking comment on the fact that the claims made by the applicant were “very similar, and in some respects identical, to those made by over 90 other clients” who had appointed that agent as authorised recipient and the fact that the application involved “the provision of identical detention and release documents which [we]re not routinely submitted by applicants from the People’s Republic of China”. The Department noted that the applicant had been asked to provide originals of documents in relation to his release and detention but that he had not done so and also put country information to the applicant for comment.
The applicant responded in writing to this information. He elaborated on his claims and provided original documents in relation to his release from detention. These were referred to the Department’s Document Examination Unit for analysis. Subsequently the Department put to the applicant’s migration agent for comment the document examiner’s observations that the documents were “similar in format to other non-authenticated documents which have previously been examined by the unit”; that the “documents possess[ed] no paper security features”; that “the fixed data…ha[d] been produced using a desktop print process commonly available” and “could have been produced by anyone with access to a desktop computer, laser and inkjet printer or even a photocopier”. It was also put to the applicant that while the documents “purport[ed] to be issued by a government body in Beijing they d[id] not possess the paper or print security that is often seen in official documents” and that the delegate was “unable to accept the authenticity of the original documents” submitted.
The applicant’s response was that these were the documents given to him and to his family by the PSB and that he believed they were standard PSB documents and procedures.
The delegate of the first respondent refused the application on 7 November 2008. The applicants sought review by the Tribunal. The applicant provided a further written statement in support of the application taking issue with aspects of the delegate’s decision and providing country information.
The applicant and his wife were invited to and attended a Tribunal hearing. After the hearing the Tribunal wrote to the applicants under s.424A of the Migration Act 1958 (Cth) by letter dated 20 August 2009 putting to them for comment information that included what the Tribunal described as discrepancies in the applicant’s evidence as to what happened to his business when he was allegedly detained and in relation to the reason his business was closed in August 2007. The Tribunal also put to the applicant inconsistencies in his evidence and in the oral evidence of his wife about the circumstances and timing of his departure from Beijing as well as in relation to whether his wife had communicated with the police at the time of his arrest on 1 April 2007.
The applicant responded by letter received by the Tribunal on 7 September 2009. He provided further details about his claim that he had two businesses and what occurred in relation to closure of those businesses. He also took issue with whether the interpreter at the Tribunal hearing had interpreted all that his wife had said. He claimed that she was “nervous and frightened” and that their “memories might have been vague”. He acknowledged that his wife had “given incorrect information” about the time he returned to Fujian Province from Beijing. In relation to the events of 1 April 2007, the applicant claimed that, “with the aging process”, there were things both he and his wife (who were around 45 years old) could not remember clearly. The applicant also provided the Tribunal with a correction to the English translation of part of the statement accompanying his protection visa application and with further country information.
Tribunal decision
In its reasons for decision the Tribunal set out the applicant’s claims made in connection with the protection visa application, detailed the documents provided and the evidence given by the applicant and his wife at the Tribunal hearing and referred to the s.424A letter and response and to country information before it.
The Tribunal summarised the applicant’s claims that he was a follower of the Local Church who feared persecution because he had been arrested, detained and physically abused and would continue to be an active and committed member of the Local Church in the future.
The Tribunal accepted that the applicant was born in Fujian Province and lived there until 1998 and that thereafter he and his wife lived in Beijing where he ran a frozen seafood business, while his three children remained in Fujian Province with his mother. Based on the applicant’s knowledge of Christianity and detailed description of his baptism the Tribunal accepted that the applicant was a Christian who was baptised on 11 August 2001 and that he practised his Christianity whilst living in Beijing. It also accepted that his wife was a Christian (based on her evidence).
However while the Tribunal accepted that the applicant and his wife were Christians, that they held gatherings at their home in Beijing and that the applicant displayed a good knowledge of aspects of the Christian faith, the Tribunal did “not accept that the applicant was baptised into the Recovery Church” or that he or his wife were “members of the Recovery Church or Shouter Church as they claim[ed]”. It found that “the applicant’s knowledge of the Recovery Church [was] lacking for someone who has allegedly been a member of this church for over seven years and … routinely held gatherings in his home for nearly eight years”.
The Tribunal referred to the applicant’s lack of knowledge about leadership positions within the Recovery Church. It did not accept his explanation that there may have been leadership positions in the Recovery Church in the countryside but not in Beijing, as it found it “implausible that rural gatherings would warrant leadership roles as opposed to gatherings in a major city”. The Tribunal also found it “difficult to accept the applicant’s claim that he only became aware of the leadership positions in Australia as there were only a few people meeting in China”. It found that this explanation did “not reflect the knowledge a long term member of the Church would have regarding the practice of the Church in China”.
The Tribunal found, for reasons which it gave, that “the applicant’s explanation of the central principles of the Recovery Church and the importance of the Recovery bible to the church” was “overly simplistic and vague” and not consistent with his claims to have been a member of that church for seven years. Among other things, it observed that the “applicant was unable to identify any of the basic beliefs of the Recovery Church”, that he gave “confusing and irrelevant” explanations for verses in the bible that he identified and that he was “unable to articulate with any clarity the significance” of verses he quoted in relation to the importance of the bible in the Recovery Church.
The Tribunal also had regard to the fact that “the applicant was unaware of the Recovery Church’s position on the Catholic Church”. It did “not accept that if the applicant was a member of the Recovery Church he would not be aware of the attitude expressed in the bible of Catholicism” and found it “implausible, given the [negative] attitude of the Recovery Church to Catholicism, that the Catholic members of the group which gathered at the applicant’s home would have continued attending if they had become the Recovery Church”.
Hence, while the Tribunal accepted that the applicants “offered their home [in Beijing] as a gathering venue for other Christians working and living in the market”, it did “not accept that the gatherings…became the Recovery Church…or that the applicants were ever members of the Recovery Church”.
The Tribunal had regard to the applicant’s evidence that since living in Australia he had participated in Recovery Church gatherings, but found that he travelled to Australia and made his way to Melbourne in order to participate in the Recovery Church for the purpose of strengthening his claims to be a refugee. It thus disregarded such conduct pursuant to s.91R(3) of the Act.
In light of its acceptance that the applicant and his wife were Christians and “members of a house church in China” (but not that they belonged to the Recovery Church or Shouter Church in China as claimed) the Tribunal then gave reasons for why it did not accept the applicant’s claims about past persecution in China. The Tribunal noted that the “applicant claimed that he had not experienced any problems because of his Christian religion” prior to “1 April 2007 when he was arrested”. The Tribunal stated that it had “serious doubts that the applicant was arrested as he claimed”.
The Tribunal did “not accept that the applicant had a poster on his wall at home [in Beijing] stating “Local Recovery Gathering Point” given that it d[id] not accept that he was a member of this particular church” and that it was “implausible that such posters would be used to advertise the groups (sic) existence so blatantly in circumstances where they may be targeted by the authorities”. The Tribunal also found it “far-fetched that during a time when the applicant claimed that the authorities were clamping down on such activities in Beijing” (in the lead up to the Olympics) and “were conducting checks on residency, a poster identifying an illegal gathering would be used”.
The Tribunal also found it “implausible that if the police [had] raided the applicant’s home and arrested everyone present, they would not [have] at least question[ed]” (if not detained) “the applicant wife, even if she was in the kitchen at the time [as claimed], given that she was one of the owners of the home where this alleged illegal activity was taking place”.
The Tribunal had regard to country information about Christian house churches and incidents in Beijing in 2007 in which people were arrested and the absence of evidence of any report of the incident in which the applicant claimed he and 18 others were arrested and detained for a number of weeks. It found that this raised “serious doubts” about whether such incident occurred. In response to Tribunal questioning the applicant claimed that there were no journalists or foreigners around because it was night time and that there was no freedom of the press in China. However the Tribunal did not accept this explanation for the absence of such information as other information before it and other material provided by the applicant regarding arrests and detention of other Christians in China suggested otherwise.
The Tribunal also had regard to the fact that while the applicant claimed he had attended hospital for treatment after his release from detention, he had responded “no” to questions about hospital treatment and medical conditions in the form he completed for the purposes of a medical examination in relation to his protection visa application. The Tribunal found that this raised doubts concerning the credibility of his claim. It did “not accept the applicant’s explanation that his migration agent [wa]s responsible for this omission”, given that “the migration agent was aware of the claims” made by the applicant about physical abuse and had “submitted the medical documents in support of this claim”. Nor did it accept that the “migration agent would have been in the position to answer the questions regarding the applicant’s medical background without his assistance”. It did “not accept that the applicant was detained and physically abused as he claimed”.
Nor, for reasons which it gave, did the Tribunal accept the applicant’s claims in relation to closure of his business either in April or August 2007. It found that his evidence in this respect was “contradictory”. It also found that the “lack of official quality” in the notice he submitted in relation to closure of his business for alleged illegal religious activities “raise[d] doubts regarding its authenticity” and therefore it placed “less weight” on this document.
The Tribunal stated that for these reasons it did not accept that “the applicant was arrested in Beijing on 1 April 2007”, “detained for 14 days” and “questioned about being a member of the Recovery Church” or that he “was physically abused whilst in detention”. It did not accept the applicant’s claim that he was “not charged with any offences because his wife and older brother found a contact to help him” and paid a bribe and therefore did not accept that his business was closed for one week in April 2007 and that in August 2007 his market stall contract was not renewed because of his illegal religious activities. It did “not accept that the applicant [had] returned to his hometown of Fuqing to hide”, “that he travelled to Russia to seek protection”, or that his wife had “received two summons[es for him] to attend the police station”.
The Tribunal went on to find, for reasons which it gave, that even if it accepted that “the applicant may have been arrested and briefly detained in Beijing in April 2007 because [he] was holding an unregistered religious gathering at his home”, it did “not accept that the applicant faces a real chance of persecution if he returns to China now or in the reasonably foreseeable future.” The Tribunal did “not accept that the applicant was physically abused whilst in detention” (based on the absence of disclosure of injuries or hospital treatment in the medical examination form completed as part of his protection visa application). Nor did it accept that “the applicant was not charged with any offence because his [family] sought the assistance of an official to facilitate his release”, finding it “implausible that a high ranking official would risk [his] position” to assist in the manner contended for by the applicant. Rather, the Tribunal found that “the applicant was briefly detained and questioned about the gatherings at his home and was subsequently released without charge.” The Tribunal did “not accept that the applicant’s detention was serious harm as defined in section 91R(2) of the Act”.
The Tribunal reiterated that, for the reasons given, it did “not accept that the applicant’s business was either temporarily or permanently closed down because of his activities or his period of detention”. It accepted that after his release the applicant returned to Fujian for a period of time prior to travelling to Russia (although it did not accept that he did so on the same day that he was released and remained there until July 2007 having regard to unsatisfactorily explained inconsistencies in the evidence of the applicant and his wife in this respect, in particular in relation to when he went to Fujian and whether he returned to Beijing). It accepted that in July 2007 the applicant went to Russia. It accepted that the applicant may have inquired about whether he could stay in Russia, but also accepted his evidence that he decided he did not want to do so because he believed it was unsafe.
The Tribunal did “not accept the applicant’s claim that whilst he was in Fujian and Russia [his] wife [had] received two summons[es]” requesting him to report to the police station, and found his claim that his contact had advised him to ignore these documents as a “formality” was “far-fetched” and that it was implausible that if there were two such summonses “he would have been able to depart and return to China without any difficulty”.
Based on these findings the Tribunal did “not accept that the applicant was pursued by the authorities after his alleged arrest in Beijing”.
While the Tribunal accepted that “after the applicant’s alleged arrest in April 2007, he returned to his hometown in Fuqing City and attended gatherings there”, it noted that he “did not claim to have experienced any difficulty practicing his religion” in the month prior to his travel to Russia or after his return to China before he came to Australia. The Tribunal was “satisfied that the applicant was of no further interest to the authorities after his arrest in April 2007 and that if he return[ed] to China, he would not face a real chance of persecution, now or in the reasonably foreseeable future”.
Further, while the Tribunal accepted that the applicant was a Christian and that he had practiced as a member of a house church (but not as a member of the Local Recovery Church) and that if he returned to China he would continue to practice his Christian faith as he had done previously, the Tribunal had regard to the fact that “the applicant was originally from Fujian Province” (where his household registration, family and home were) and accepted his “evidence that he no longer own[ed] his business in Beijing and therefore he ha[d] no ties there”. Having regard to country information about freedom of religious worship in Fujian Province, the Tribunal was “satisfied that the applicant [could] return to Fuqing and practise his religion”. The Tribunal did not accept the applicant’s “inferred claim” that he and his wife “had to modify their behaviour in order to practice their Christian faith in Fujian in the past” or that “having to bring shoes inside while attending a gathering constitute[ed] a modification of his religious beliefs and opinions”. The Tribunal found that the applicants had been “free to practise their Christian faith in Fujian in the past and [would] continue to be able [to do so] on their return to Fujian” Province.
The Tribunal also observed that it did not accept that the fact that the applicants were 44 years old (which it did not accept was old or elderly) had any bearing on their ability to recall significant events in their life. It found that neither their age, the period of time that had elapsed since the alleged detention, or their inability to recall important events explained the significant discrepancies in their evidence.
For these reasons the Tribunal did not accept that there was “a real chance that the applicant w[ould] be arrested and detained or persecuted, if he returned to China for reason of his Christian religion or any other Convention reason, now or in the reasonably foreseeable future”. It found that his fear of persecution was not well-founded.
As the applicant husband did not satisfy the criteria for a protection visa the Tribunal found that it followed that his wife could not satisfy the relevant criteria and could not be granted such a visa.
The applicants sought review by application filed in this court on 27 October 2009. They filed an amended application on 22 December 2009. I have considered the grounds raised in each of these documents.
Whether Tribunal misunderstood claims
In the original application the applicants claimed first that the Tribunal’s decision was affected by jurisdictional error as it misunderstood the applicant’s claims. There is nothing in the material before the court to demonstrate that the Tribunal misunderstood the applicant’s claims, let alone that it did so in a manner demonstrating or constituting jurisdictional error. Insofar as this ground can be characterised as a criticism of the Tribunal’s fact-finding, that is a matter within jurisdiction and does not of itself establish jurisdictional error. Insofar as the applicant takes issue with the Tribunal’s findings in relation to his credibility, credibility is a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1). Merits review is not available in this court. This ground is not made out.
Section 424A
The second ground in the original application is a generally expressed and unparticularised claim that the Tribunal “breached its obligations under S424A as it failed to invite me to comment on information”. The Tribunal wrote to the applicants under s.424A of the Migration Act inviting comment on certain inconsistencies in the information before it. In oral submissions the applicant took issue with the generality with which the Tribunal’s s.424A letter referred to his business, on the basis that he had two businesses and the letter did not explain clearly which business was in issue. However, as the first respondent contended, inconsistencies are not matters that constitute information within s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]). As inconsistencies in the applicant’s evidence were not subject to the obligation in s.424A(1) of the Act, the concerns expressed by the applicant do not establish a failure by the Tribunal to comply with s.424A. Moreover, while it was not necessary for the Tribunal to put such inconsistencies to the applicant, the fact that it did so does not establish a failure to comply with s.424A of the Act (see SZBYR).
The issue of whether or not the Tribunal was obliged to put to the applicant for comment under s.424A of the Act the views of the Department in relation to the alleged similarity of the applicant’s claims and documentation to the claims and documentation provided by other clients of his migration agent and the results of the Document Examination Unit examination of the detention and release documents provided by the applicant was addressed in submissions for the first respondent.
Neither of those matters were put to the applicant in the s.424A letter dated 20 August 2009. The Tribunal’s reasons for decision are the only evidence before the court of what occurred in the Tribunal hearing. According to the Tribunal, it raised with the applicant in the course of the hearing that the delegate had put to him the fact that there were numerous applications lodged by his adviser which contained highly similar claims and asked the applicant to comment. The applicant responded to these concerns. Similarly, the Tribunal recorded that it raised with the applicant in the hearing the fact that the delegate had put to him the results of the document examination suggesting that the detention and release documents were not genuine and that the applicant responded that these were the documents that were given to his wife.
The Tribunal also recorded that at the end of the evidence given by the applicant, before it took evidence from his wife, the applicant referred to what he claimed was the Tribunal “suspicion regarding the authenticity of the documents he [had] submitted”. He claimed that the “written notices that were given to his wife were sent to him by his child in China”. The Tribunal stated that it:
explained to the applicant that what it had put to him was the fact that the Department had raised the authenticity of these documents with him because all the documents that had been provided by the applicants with similar claims to him had been examined and there was a question regarding their genuineness. The Tribunal stressed to the applicant that it had not made any decision regarding any aspect of his claim, including the authenticity of the documents he had submitted, but was providing him the opportunity to comment on the findings of the Department. The applicant stated that he could not understand the reasons raised by the Department.
Counsel for the first respondent submitted that s.424A(1)(a) was not engaged because the information in question simply did not factor into the decision the Tribunal made. Reference was made to Minister for Immigration and Citizenship v SZLFX and Another (2009) 238 CLR 507; [2009] HCA 31 in support of the proposition that s.424A depended upon the Tribunal’s opinion that certain information would be the reason or part of the reason for affirming the decision under review. It was submitted that the Tribunal’s reasons could be used to show what counted against the applicant and to draw inferences about what the Tribunal thought was adverse and that in this case the Tribunal’s reasons did not suggest that either in the result or at any antecedent stage the similarity of the applicant’s claims to those of others was a basis for particular findings or went to the applicant’s credibility.
Counsel for the first respondent acknowledged that the Tribunal had put these issues to the applicant in the hearing as having been raised by the Department, but also pointed out that according to the Tribunal’s account of what occurred in the hearing, it told the applicant that it had not made any decision about any aspect of his claim, including the authenticity of the documents he submitted.
Counsel for the first respondent pointed to the fact that the findings and reasons part of the Tribunal decision contained no mention of the similarity in claims. This was said to warrant an inference that the existence of other similar protection visa claims was not a matter which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. It was submitted that there was no evidence or necessary inference that the Tribunal had any opinion about the coincidence of the applicant’s claims.
In relation to the results of the Document Examination Unit examination it was also submitted that the Tribunal made it clear in the hearing that it had not made any decision regarding authenticity of the applicant’s documents, so that at that antecedent stage the Document Examination Unit results would not have formed the reason or part of the reason for affirming the decision under review and that one could infer from the fact that this issue did not appear in the findings and reasons part of the decision that it was not a consideration of the Tribunal or a basis for any finding.
The first respondent contended that insofar as the Tribunal rejected the matters to which the documents related it did so for reasons not subject to a s.424A obligation and that this lent support to the view that the Tribunal did not consider that the Document Examination Unit results were something that would or could form the reason or part of the reason for affirming the decision under review.
The first respondent also submitted that if s.424A(1) was engaged then the information in relation to the claims of others represented by the same migration agent and the results of the Document Examination Unit were put to the applicant during the course of the Tribunal hearing under s.424AA of the Act.
In SZLFX the High Court found that the Tribunal had not breached s.424A of the Act in failing to put to the visa applicant part of the information in a file note obtained from a third party that was contrary to the oral evidence of the applicant. The Court had regard to the reasons of the Tribunal in concluding that in circumstances where it was clear from the reasons “that adverse credibility findings arose from matters which were not subject to any obligation under s424A” then “[t]he only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision” (at [26]). In reaching this conclusion their Honours reiterated (at [21]) that in SZBYR it had been stated (at [11]) that “Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Relevantly their Honours also stated in SZLFX (at [22] – [25]):
Furthermore, it was emphasised that for s 424A(1)(a) to be engaged, the material in question should in its terms contain a "rejection, denial or undermining" of the review applicant's claim to be a refugee. The Federal Magistrate approached the issue framed by reference to s 424A by considering whether the file note could or might undermine the credibility of the first respondent. He considered it could and also considered that no inference that the file note was not material to the decision should be drawn from the RRT's failure to mention the file note.
This approach was, with respect, flawed given the following observations in SZBYR:
"[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1). ... However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence."
As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT's "consideration", that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had "considered" or had any opinion about the file note.
As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which "would", not which "could" or "might", be the reason or part of the reason for affirming the decision under review. (footnotes omitted)
In its findings and reasons in this case the Tribunal did not refer to the detention and release documents (or the document examination results or evidence of similar documents submitted by different applicants). The Tribunal reasons show that what “counted against” the applicant (SZLFX at [26]) was his lack of knowledge of the Recovery Church, the fact that he had not experienced any problems because of his Christian religion apart from one incident of arrest and detention, implausibility and inconsistencies in his evidence in certain respects, inconsistency with the evidence of his wife and independent country information.
While the Tribunal recorded that in the hearing it raised the delegate’s concerns about similar (albeit not identical) claims in other applications lodged by the applicant’s adviser and the fact that the delegate had put to the applicant the results of the document examination, it also advised the applicant that it “was providing him [with] the opportunity to comment on the findings of the Department” rather than raising a “suspicion” of its own as the applicant suggested. The fact that the delegate’s concerns and findings were discussed in this manner at the hearing does not compel an inference that the Tribunal “considered” that the document examination results of the existence of similar claims “would” (not “could” or “might” as observed in MZXBQ v Minister for Immigration and Citizenship and Another (2008) 166 FCR 438; [2008] FCA 319 and SZLFX at [25]) “be the reason or part of the reason for affirming the decision under review”.
The Tribunal did not accept the applicant’s claim that he was physically abused in detention as claimed (and as corroborated by medical reports he provided), but this conclusion was based not on information about similar documents in other applications or a Document Examination Unit report, but on the applicant’s negative responses to questions about past hospitalisation and injury in a medical examination form provided in connection with the protection visa application (and hence within the s.424A(3)(b) exception). Further, while the Tribunal placed “less weight” on a notice of seizure of his business that lacked a signature or the name of the person who issued it, it did so on the basis that “the lack of official quality of this document raises doubts regarding its authenticity”.
The Tribunal expressed “serious doubts that the applicant was arrested as he claimed” and initially did not accept that he was arrested in Beijing on 1 April 2007, detained for 14 days and mistreated as claimed. In reaching this finding it made no mention of the Department’s concerns about similar documentation from other clients of the migration agent or the results of any examination of the purported original detention and release documents.
However, critically, the Tribunal considered whether the applicant had a well-founded fear of persecution on the basis that he was arrested and detained in Beijing in April 2007 (the matters addressed in the detention and release documents). Such an approach did not take issue with the genuineness of the detention and release documents (as discussed further below in relation to the claim that the Tribunal failed to “engage” with the corroborative material). Hence any information about the genuineness of the detention and release documents (or the existence of similar documents lodged by other visa applicants) was not relevant and significant to the decision. Rather the Tribunal’s adverse findings critical to its decision arose from matters not subject to any obligation under s.424A.
Having regard to the Tribunal reasons as a whole and the evidence about the hearing and in light of the approach in SZLFX I am satisfied that an inference should be drawn that the Tribunal did not consider that the evidence about the existence of similar claims or the results of the Document Examination Unit examination of the applicant’s detention and release documents “would” be the reason or part of the reason for affirming the delegate’s decision. Hence no s.424A obligation arose in relation to such material.
Section 91R(3)
The third ground in the original application is that the Tribunal “failed to consider [the applicant’s] religious practice in Australia”. However the Tribunal addressed the claim that the applicant practised his religion in Australia and his motivation for so doing. It was not satisfied that he did so otherwise than for the purpose of strengthening his claim to be refugee (see Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXOand Another (2009) 238 CLR 642; [2009] HCA 40) and on this basis disregarded the applicant’s conduct in practising his religion in Australia under s.91R(3). No jurisdictional error is established in this respect.
Corroborative evidence
In the amended application it was contended that:
The Tribunal failed to truly engage with the claim presented by the applicant and attend to its statutory obligations when it did not take into account the release certificate, notice to family member of the detainee and checklist for items seized which teh (sic) applicant had provided to the Department. It thereby fell into jurisdictional error.
The applicant did not elaborate on this ground in submissions, but it is apparent that it relates to three of the documents he provided in support of his protection visa application: a notice to the family member of the detainee from the PSB dated 1 April 2007; a copy of a “checklist” of items seized from the applicant by the PSB dated 1 April 2007; and a release certificate said to be issued by the PSB dated 14 April 2007. There is no suggestion that the Tribunal failed to take into account the other documents the applicant submitted (in particular the “notice” about seizure of his market stall and the medical records and report) or the claims to which they related.
The documents in issue were set out in the Tribunal description of the evidence before it, but no express findings were made as to the authenticity of these documents or in relation to whether or not they corroborated the applicant’s claim that he was arrested and detained.
The Tribunal gave reasons as to why it did not accept the applicant’s claims about his past experiences in China, in particular that the applicant was arrested in Beijing on 1 April 2007 and detained for 14 days during which time he was questioned about being a member of the Recovery Church and physically abused. These reasons did not address the documents in relation to the applicant’s release and detention.
However, whether this ground is intended to be a contention that there was a failure by the Tribunal to have regard to a relevant consideration or, as seems probable, a contention that the Tribunal failed to “engage with the…claim” of the visa applicant in the sense considered by Logan J in SZLGP and Another v Minister for Immigration and Citizenship and Another (2009) 181 FCR 113; [2009] FCA 1470, the difficulty facing the applicant is that the Tribunal determined whether it was satisfied that he had a well-founded fear of persecution on the basis that he was detained and released in April 2007. If the Tribunal’s reasons for decision had not considered the applicant’s claims on the basis that he was arrested and detained for holding an unregistered religious gathering at his home (albeit not a Recovery Church gathering), a significant issue would have arisen in relation to the Tribunal’s failure to consider material corroborative of his claim to have been detained. However, critically, (consistent with the documents referred to in this ground) for reasons which it gave and which are not affected by the material in question, the Tribunal found that even if it accepted that the applicant had been arrested and briefly detained in Beijing in April 2007 because he was holding an unregistered religious gathering at his home, it did not accept that he faced a real chance of persecution if he returned to China now or in the reasonably foreseeable future. Having rejected the applicant’s claim that he was arrested and questioned about being a member of the Recovery Church, the Tribunal’s findings in that context, including that it did not believe that the applicant was physically abused in detention, were not based on the documents in question, but rather on matters such as his failure to refer to injuries or hospitalisation in the medical examination form completed as part of his protection visa application, implausibilities in his evidence about how he obtained release without charge and the fact that he subsequently returned to Fujian Province and was able to practise his religion there and travel to and from Russia without any difficulty at all. On that basis the Tribunal found that the applicant was briefly detained and questioned about the gatherings at his home and that he was subsequently released without charge. It was satisfied that the applicant “was of no further interest to the authorities after his arrest in April 2007”. Hence, while the Tribunal accepted that the applicant was a Christian and a member of a house church (but not a member of the Local Recovery Church), it found that he could return to his home province and practise his religion and that he would not face a real chance of persecution on the basis of his religion.
When read in isolation, the first part of the Tribunal’s findings and reasons could be seen as involving a rejection of the applicant’s claims about arrest and detention. However when the decision is read as a whole, it is apparent that the Tribunal determined the applicant’s claim to have a well-founded fear of persecution on the basis that he was arrested and detained in April 2007 (consistent with the documents in issue). Hence any concern about the authenticity of such documents was not material to the outcome of the decision.
Further, this is not a case in which it can be said that the Tribunal’s failure to address the corroborative evidence in question had an impact on the assessment of the applicant’s credibility that was determinative of the application. The Tribunal did not make a broad finding that the applicant could not be relied upon at all because of credibility issues. Rather, it analysed the applicant’s particular claims and accepted some but not other aspects of his claims.
Thus, while a Tribunal’s failure to reach an express conclusion about the authenticity of corroborative documents and how they might be weighed against other evidence could in some circumstances constitute a jurisdictional error as a failure to “engage” with a claim (see SZLGP), in this case it did not impact on the result of the decision in a manner constituting jurisdictional error in the sense considered in Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (see Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [38]) .
Indeed, even if it could be said that the Tribunal’s failure to engage with these documents in part of its decision did constitute jurisdictional error, no useful outcome could ensue from remitting the matter for reconsideration, as engaging with the documents could not make any difference to the result and relief should be refused on this basis (see SZBYR at [91] per Hayne J, Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [56] and SZNRF v Minister for Immigration and Citizenship [2010] FCA 86).
Other issues
In oral submissions the applicant took issue with the merits of the Tribunal decision. As I endeavoured to explain to him, merits review is not available in this court. His concerns in this respect do not establish jurisdictional error. His contention that the Tribunal decision was unfair because it did not accept his claim seeks impermissible merits review.
The applicant also took issue with the conduct of the interpreter at the Tribunal hearing. He contended that the interpreter kept asking his wife to speed things up and that this was not stopped by the Tribunal However there is no evidence before the court as to the conduct of the Tribunal hearing other than the Tribunal reasons for decision (notwithstanding that orders were made for the filing of any transcript of the Tribunal hearing). No jurisdictional error is apparent on the material before the court.
The applicant also took issue with the Tribunal’s reasoning in relation to his knowledge of the bible. He claimed that whether or not his claims were similar to those of other applicants there was nothing he could do about this. As discussed above, the similarity of the applicant’s claim to those of other applicants was not a matter relied upon by the Tribunal in its findings and reasons. The applicant’s contentions about whether or not his case was being deliberately strengthened by his references to the bible seemed to conflate the Tribunal’s consideration of his knowledge of Christianity (which it accepted) and its approach to his attendance at the Local Church in Melbourne (which it found was designed to strengthen his case and hence disregarded under s.91R(3) of the Act). These concerns do not establish jurisdictional error on the part of the Tribunal.
For these reasons the application should be dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 13 May 2010
0
14
1