SZOAC v Minister for Immigration
[2010] FMCA 527
•21 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAC & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 527 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of the Protection (Class XA) visa – no reviewable error – application dismissed. The Applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZOAC” and “SZOAD”. |
| Migration Act 1958 (Cth), ss.91R(3), 91X |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Citizenship v SZIAI & Anor [2009] HCA 39 Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642 |
| First Applicant: | SZOAC |
| Second Applicant: | SZOAD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2731 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 29 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2010 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Counsel for the Respondents: | Mr Kennett |
| Solicitors for the Respondents: | AGS (Ms Buchanan) |
ORDERS
The application filed on 9 November 2009 is dismissed.
The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2731 of 2009
| SZOAC |
First Applicant
| SZOAD |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Proceedings
The Applicants who claim to be citizens of the Peoples’ Republic of China arrived in Australia on 21 October 2007 and applied to the Department of Immigration & Citizenship for a Protection (Class XA) visa on 30 March 2009. The delegate decided to refuse to grant a visa on 7 July 2009 and notified the Applicants of the decision and their review rights by letter dated the same day. The delegate refused the visa application on the basis that the first named Applicant was not a person to whom Australia had protection obligations under the Refugee Convention. The Applicants applied to the Refugee Review Tribunal (“the Tribunal”) on 5 August 2009 for a review of the delegate’s decision. It is that decision of Ms Philippa McIntosh, RRT case number 0906185 dated 12 October 2009 that is the subject of this judicial review.
The Applicants are father and daughter. The Applicant daughter made no claims to be a refugee and relies upon the claims made by her father. For the purposes of this judgment, the Applicant father will be referred to as “the Applicant”. The Applicant father was born in Fuqing City in the Fujian province of China and lived in Lianfeng village all of his life. He claims to be a Catholic and participated in the local underground church. He states that he followed this religion because of his wife, who participated in church activities. He states that initially, he seldom participated in church activities as he had to work to support his family and this did not leave much time to participate in these activities.
In 2002 he gained employment as a minor which was well remunerated but involved dangerous work. In 2005, there was a major accident in the mine during which few people survived. After the accident he quit his job because he realised life was important, believed he had survived because of God and decided to participate in church activities with his wife. After becoming a Catholic, he experienced great happiness and security. He claimed that in the area where he lived the underground church gatherings were not permitted.
The Applicant claims that on 25 February 2007 (at around 10.30), five police officers arrived at the underground church where the Applicant, his wife and six others were kneeling on the ground praying at the time. He claimed that the police kicked and punched them then searched the house and confiscated a cross and bible. Everyone was arrested and taken to the local police station.
The Applicant stated that he and his wife were interrogated separately and he was very concerned about his wife. He stated that his hands were handcuffed behind the chair and he was questioned about the relationship between him and other members of the church. He did not tell the truth because he knew what would happen to the other members if he did. On the second day, they were sent to the Fuqing Detention Centre where they were held in custody for fifteen days. His wife was sent to hospital due to a high fever and therefore avoided detention. He claims he was tortured during the fifteen days but was not afraid because of God’s presence. However, he was worried about his family and other church members. He claims that he only chose to leave China to “obtain religious freedom and human rights”. He borrowed money so that he and his daughter could stay overseas.
The Applicant states that he and his daughter encountered many difficulties after arriving in Australia but this was not elaborated on. His guardian visa was about to expire and he wanted to go back to China as he missed his wife, family and church brothers and sisters but he was also afraid to go back and face the government and police. After praying he decided not to return claiming that his daughter was also sick and weak and needed him to take care of her.
A Court Book (“CB”) was prepared and filed by the first Respondent’s solicitors and is marked Exhibit “A”. During the hearing a copy of the “Response to Hearing Invitation” was tendered and marked Exhibit “A2”. This is the only evidence before the Court.
In the original application filed on 9 November 2009 the Applicant pleaded the following grounds:
1. RRT got information about the situation in China, which was that there was a high degree of religious tolerance.
2. Chinese government still persecuted underground church members.
3. They refused my application and used failed cases against my application. They did not believe all I said is true.
At the first court date directions hearing, the Applicant indicated that he wished to participate in the NSW RRT legal advice scheme and the Applicant was subsequently allocated a panel advisor and received advice. Leave was also granted to file an amended application after he had received that advice.
On 2 March 2010 the Applicant filed an amended application which contained the following grounds of review:
The Tribunal wrongfully disregarded the Applicant’s conduct in participating in church activities in Australia in reliance upon s.91R(3) of the Act as that section had no application to that conduct because the Tribunal was not engaged in a chain of reasoning leading to a determination in favour of the Applicant which was based in whole or in part on inferences drawn from that conduct.
Tribunal decision
The Applicant was before the Tribunal on 6 October 2009 to give evidence and present argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Fuqing and English languages. The Applicant was represented in relation to the review by a registered migration agent. However, the agent was not present during the Tribunal hearing. The Applicant claimed that he faced persecution in China as a result of his involvement in an underground Catholic church and as a result of the authorities becoming aware that he had applied for a Protection visa in Australia. The Tribunal regarded the possibility of the Chinese authorities becoming informed of the Applicant’s Protection visa application was remote (CB 115 at [77] and CB 117 at [88]).
In respect to the Applicant’s claims relating to religion, the Tribunal is not satisfied with his evidence. It did not accept that he had been a member of the underground church in China or that he had been detained on suspicion of being a member of such a group (CB 116 at [84] and CB 117 at [87]). On the contrary, it was satisfied that he had come to Australia for reasons unrelated to the fear of persecution on this basis (CB 116 at [85]). Nor did it accept that the Applicant currently considered himself to be a Christian. The Tribunal was satisfied that if he returned to China he would not want to participate in any underground Christian activities (CB 117 at [87]).
In the course of reaching these conclusions the Tribunal referred to evidence that the Applicant had been attending a Catholic church in Australia since his arrival. Although not wholly satisfied with this evidence, the Tribunal accepted that the Applicant had some contact with the church (CB 116 at [86]). However, the Tribunal concluded that it was not satisfied that this contact had been undertaken for any reason other than to strengthen the Applicant’s claim to be a refugee and, referring to s.91R(3) of the Migration Act 1958 (Cth) (“the Act”), said that it had “disregarded that conduct when considering whether he had a well founded fear of Convention related persecution in China” (CB 117 at [86]).
Consideration
At the first court date directions hearing, I made an order requesting that the Applicant was requested to file and serve in the Registry a short written outline of submissions and a list of authorities fourteen days prior to the hearing. The Applicant confirmed that he had failed to prepare such a document. When invited to make oral submissions, he initially responded by asking the Court what did it want to know. The function of this Court was explained to the Applicant when undertaking a judicial review of the Tribunal’s decision and it was for the Applicant to advance any arguments in support of his claim that the Tribunal decision contained jurisdictional error.
I acknowledge the decision in Abram v Bank of New Zealand & Anor [1996] 18 ATPR 41-507 where the Full Federal Court applied the decision of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at [50], to the effect that where a party is not represented, the Court must assume a burden endeavouring to ascertain the rights of the party which are obfuscated by their own advocacy. What a Judge must do to assist the Applicant in person depends on the litigant, the nature of the case, the litigant’s intelligence and understanding the case. In this matter the Applicant does not speak English and is forced to rely upon a Mandarin – English interpreter. Further, he does not appear to have any understanding or appreciate the legal process in which he is embarking or the onus which is upon him to establish his grounds of review. Despite having been explained to him via the interpreter service the role and function of the Court the Applicant appears to be under the impression that these proceedings are yet another step in the process to obtain the Protection visa and of a similar nature to procedures before both the delegate of the Minister and the Tribunal.
When invited to make further submissions the Applicant advised the Court that he could not understand why he was not believed and why when he and his daughter were in China they tendered the underground Catholic church. Also whilst in Australia they both attended the Catholic church on Sundays. The Applicant then stated that if he and his daughter were not attending the Catholic church how would they have been photographed taking part in church activities. More particularly a number of photographs had been taken during the 20 year anniversary of the church that he attended in Sydney which was celebrated a few weeks before the hearing.
When asked whether this material had been supplied to the Tribunal, the Applicant indicated that it had only recently occurred well after the Tribunal hearing was over. The Applicant stated that if he was not believed, he invited the Court to call the Catholic church in Flemington and speak to the father of the church and enquire about the Applicant’s attendance and participation in church activities. Since arriving in Australia, the Applicant had formed many friendships in the church with church followers. He indicated that this group of people had taught him many things and that he had developed a liking for Australia because the people were friendly. He indicated that when he was in China he was located in the rural area which meant it was difficult to expand his learning. He stated that during his time spent here he had learnt languages, including Korean and Cantonese, and also understood some English which enabled him to sing entire songs in the English language.
In the Tribunal’s ‘Findings and Reasons’ the Tribunal member acknowledges that members of unregistred churches in China were often subjected to full treatment at the time that the Applicants left China in 2007. However, the Tribunal did not accept that the Applicant was a member of an unregistered Catholic group in China for the following reasons:
a)The evidence given by the Applicant in respect to his religious observants in the underground church rather than the government approved Catholic church and the claims of harassment by the authorities is inconsistent with the independent country information which indicates that the underground churches were not harassed by the local authorities.
b)Although he claims to have become a dedicated Catholic in 2005 after surviving a serious accident in his workplace, his religious observants did not change nor did he seek baptism.
c)He claimed arrest and contention by police for 15 days which was genuinely inconsistent with independent country information about the official attitude to underground churches in the Fujian.
d)The claimed police crackdown on the Applicant’s particular church group 2007 is inconsistent in that the same group continues to operate after the crackdown. The Tribunal found that the Applicant came to Australia for reasons unrelated to a fear of being persecuted for a Convention reason of religion.
In addressing the Applicant’s activities in respect to attending a Catholic church in Flemington for the two years while in Australia it made the following observations at [86].
…It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the Applicant satisfies the decision making that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention. I am not satisfied that [the applicant] considered himself to be a Christian when he arrived in Australia. His written and oral evidence relating to his involvement with the Catholic Church at Flemington indicates that that involvement was superficial. I am not satisfied that he had any contact with that church for any reason other than to strengthen his claim to be a refugee, and have therefore disregarded that conduct when considering whether he has a well founded fear of convention related persecution in China. (CB 116-117)
Mr Kennett, in his written submissions, suggests that the argument advanced by the Applicant appears to be based on part of the reasoning of their Honours French CJ and Bell J in Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642 at [12] where their Honours state:
[12] The proposition that s 91R(3) is concerned with the process of determination after the primary facts have been found does not meet the textual difficulty generated by the ordinary meaning of the word “whether”. However, the Solicitor-General’s submission does lead to consideration of an alternative construction, which is to read “whether” as “that”: not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term “whether” in para (a). But such misuse is not entirely without precedent.16 In this case, the substituted text corrects what would be an obvious drafting error were “whether” to be construed according to its ordinary and natural meaning. On the alternative construction, para (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the Applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in para (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction. It meets the purpose of the subsection and avoids absurd results. Upon that construction the appeals must be allowed.
In contrast to the reasoning of Crennan and Kiefel JJ, the other members of the majority do not include this particular step. However, it is not suggested that there is any material difference between the positions reached by the two joint judgments as to the effect of s.91R(3). Both set of reasons hold that, if the condition in para. (b) of the subsection is not met, the subsection requires evidence of conduct engaged in by the visa Applicant in Australia to be disregarded only to the extent that it would otherwise purport the visa Applicant’s claim to have a well founded fear of persecution. Crennan and Kiefell JJ at [64]-[65] state:
[64] The approach of the Full Court was to regard subs (3) as engaged once the inquiry in para (b) was answered. This does not give sufficient weight to the underlying objective of subs (3). It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of subs (3); if it would not strengthen the claim, it may be taken into account.
[65] It is essential that the object of s 91R(3) and the mischief it was intended to remedy be taken into account in construing it.63 The Full Court referred to that object but did not take it into account in that process, with the result that its operation is wider than can be seen as necessary or intended. True it is that the object or purpose of a statutory provision is more often called in aid of a broad construction, one broader than might be achieved by a literal approach. In this
259 ALR 595 at 614
case the object of s 91R(3) requires that the section be read more narrowly.64 It should not be read as requiring evidence of a person’s conduct in Australia, or that person’s motive for that conduct, to be disregarded for any purpose in connection with the determination of their application for a protection visa. Evidence of that conduct and findings about motive may be applied to discredit the Applicant’s claim.
Mr Kennett submits that in the present case, the evidence that the Applicant had attended a Catholic church in Australia supported his claim to fear persecution on the grounds of his Catholic faith. It was not logically capable of undermining that claim. Since the only possible relevance of this conduct was by way of support for the Applicant’s claim for a Protection visa, the Tribunal did not err by proceeding on the basis that the conduct was required to be disregarded. More particularly, disregarding the conduct in question precluded a “chain of reasoning”, leading to the grant of a Protection visa, which the Tribunal would otherwise have been required to consider, and whose potential relevance is separately noted: ie a claim to have become a refugee “sur place” as a consequence of events occurring since the Applicant left China (CB 116-117 at [86]-[87]). That claim might or might not have had substance: The Tribunal did not pursue it, because s.91R(3) required the conduct upon which it was based to be disregarded. In other words s.91R(3) itself was the very reason why the Tribunal was not engaged in such a chain of reasoning. This is exactly the operation of s.91R(3) was intended to have.
Mr Kennett submits that in any event, even if the Tribunal erred in its application in 91R(3) the error caused no prejudice to the Applicant. To the extent that the evidence concerning church attendance in Australia assisted the Applicant, the Tribunal was correct in disregarding it pursuant to s.91R(3). To the extent (if any) that it undermined his claims, disregarding could only have assisted him. The absence of any prejudice to the Applicant (and indeed any effect on the outcome) means that:
a)Any error was not one by the Tribunal’s exercise of the power was “perfected”, and thus did not go to jurisdiction: Craig v South Australia (1995) 184 CLR 163 at [179]; and
b)If such error were seen as going to jurisdiction, relief should be refused in the exercise of the Court’s discretion.
The central point is that it was up to the Tribunal whether to believe the Applicant’s evidence or not and there is no legal error apparent in the way the Tribunal reached its conclusion on that matter. The Tribunal sets out in its decision record at paragraphs [79]-[84] why it did not accept that the Applicant was a member of an underground Catholic group in the Fujian province and found the reasons for coming to Australia were unrelated to a fear of being persecuted for the Convention reason of religion.
Two issues arise in respect to the suggestion that the Applicant made that the Tribunal should call the father at the Flemington Catholic church to verify whether the Applicant was a practising Catholic. Firstly, it is far from clear that the father at the church could provide critically important information. He might have been able to verify that the Applicant attended on a regular basis. However, there is no way of knowing whether he could have said anything about the genuineness of the Applicant’s commitment to the faith. Secondly, nor is there any reason to think that the priest in Australia could have given any information about the Applicant’s experiences in China. Consequently this was not information readily available and not critical information that the Tribunal refrained from obtaining.
In the High Court decision of Minister for Immigration & Citizenship v SZIAI & Anor [2009] HCA 39 at [25], the Court said that there might be cases where the failure to seek pieces of readily available and critical information would involve a failure by the Tribunal to conduct a review. The Court left that possibility open. Firstly, the information of the kind in the matter before this Court was not a piece of information being referred to by the High Court. Secondly, despite the comment in SZIAI, as a general rule it is not the Tribunal’s role to find evidence and present it on the Applicant’s behalf. Evidence from the priest was something that the Applicant was in a position to obtain himself and place before the Tribunal. The Applicant could have presumably, obtained a letter from the priest and put it before the Tribunal. There is a short statement in the Court Book at pp.100, 101 which appears to be a statement from some fellow worshipers which verifies or purports to verify that he attended the Flemington church. It is not known whether the Applicant approached the priest to ask for a similar statement from him but there is nothing on the record. It also appeared that there was no attempt made to have anyone, including the priest, appear as a witness before the Tribunal. Such a request could have been made but has not been pursued.
This issue in respect to the issuing of an invitation to the father to appear at the Tribunal hearing is addressed by Exhibit “A2”. The “Response to the Hearing Invitation" form is double sided and on the rear page of the standard form the Applicant is asked whether he or she wants to suggest the name of any witnesses that they require to be called to appear before the Tribunal. In the Court Book the rear or second page of the standard form has not been reproduced. Exhibit “A2” clearly indicates that from the fax machine records that only one page of the form was returned. The page that could have been used to nominate witnesses was not returned to the Tribunal.
Conclusion
I acknowledge that the self represented litigant in this matter experienced considerable difficulty advancing his case. However, I am satisfied that he has received limited legal advice and has taken the opportunity to file an amended application which only advances one ground of review. I am satisfied that this ground cannot be sustained and should be dismissed. Further the issue raised by the Applicant during the proceedings in respect of the Tribunal undertaking further enquiry from the Priest at the Flemington Catholic church does not raise an issue of jurisdictional error in respect of this issue. Consequently the application should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 21 July 2010
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