SZOCG v Minister for Immigration
[2010] FMCA 237
•7 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCG v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 237 |
| MIGRATION – Visa – Protection (Class XA) visa – review of RRT decision – citizen of China claiming fear of persecution on the ground of religious belief – applicant claims to be a Christian – credibility issues – whether Tribunal decision was illogical – whether Tribunal failed to give the applicant sufficient time to explain the inconsistencies in his evidence – whether Tribunal failed to give sufficient consideration to the applicant’s claims – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.36, 91R, 424AA, 425, 474, 476 |
| Re Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42 |
| Applicant: | SZOCG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 39 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 29 March 2010 |
| Date of Last Submission: | 29 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2010 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Respondents: | Ms Mills |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,200.00.
I allow 4 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 39 of 2010
| SZOCG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of the People’s Republic of China, asks the Court to review a decision of the Refugee Review Tribunal made on 9th December 2009. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant him a Protection (Class XA) visa.
The Applicant seeks a writ of certiorari quashing the Tribunal decision and a writ of mandamus requiring the Tribunal to determine his application according to law. He relies on the following grounds of review:
i)The RRT’s decision was affected by jurisdictional error as it made findings on illogical ground(s).
ii)The RRT failed to give me sufficient time to explain on the inconsistencies among my claims.
iii)The RRT did not give sufficient consideration to the applicant’s claims.
The First Respondent, the Minister for Immigration and Citizenship, has filed a response opposing the application on the basis that the Minister does not admit that there is any jurisdictional error in the Tribunal’s decision.
Background
The Applicant, a young man aged 23, arrived in Australia on 28th October 2008. He applied for a Protection (Class XA) visa on 12th May 2009.
In his application, the Applicant claimed that he had first come to Australia in 2003, when he was still only 16 years old. He claimed that he became a Christian whilst in Australia and when he returned to China in October 2008 he began to “propagandize” Christianity in his home town. His activities attracted the unfavourable attention of the police who warned him not organize any more religious activities. He was taken to a police station and questioned for about three hours, until his uncle arranged bail for him. He decided to leave China for Australia. He attached to his application a copy of a certificate stating that he had been baptised at the Bread of Life Christian Church in Sydney on 25th December 2008.[1]
[1] See Court Book at page 17
The Applicant was interviewed by a delegate of the Minister on 28th July 2009.
The Applicant’s application for a protection visa was refused on 5th August 2009. In the Protection (Class XA) visa Decision Record, the delegate stated that she was not satisfied that the Applicant had substantiated a claim of a well founded fear of persecution. The delegate gave these reasons:
· At interview, the Applicant’s testimony appeared rehearsed in some aspects and evasive in others.
· There were significant elements of the Applicant’s written claims (which) were at variance with testimony given at interview, which leads me to believe his situation is not as claimed.
· At interview I questioned the applicant regarding his religious beliefs. Although he is aware of elements of Christianity, I do not find he has the depth of understanding commensurate with his stated commitment to his Christian faith.
· Further, whilst the Applicant stated he had undertaken some forms of training offered by The Bread of Life Christian Church he could not give an account of what they entailed or their duration…the Applicant’s lack of understanding cast a doubt in my mind as to the depth of his knowledge and commitment to his Christian beliefs and practices.
· Worthy of note is the fact that according to his statements the Applicant set off to preach in his hometown without the benefit of suitable training, support from his pastor and without being baptised as a Christian.
· I also find it of note that the Applicant was able to leave China on his passport and unhindered by Chinese authorities which indicates that he was not of any interest to Chinese authorities at the time of his departure.[2]
[2] See Court Book at 57
The delegate stated that she was not satisfied that the Applicant was of any interest to the Chinese authorities for a Convention-based reason at the time of his departure from China, or that there was any evidence that he would be of interest for a Convention-based reason if he were to return to China in the reasonably foreseeable future.
The delegate went on to consider whether the Applicant had established a sur place claim as a result of his activities in Australia. The delegate stated:
I note that at interview, the Applicant stated he has only been attending The Bread of Life Christian Church activities in earnest since 2008, and was not baptised until December 2008 after his return from China. Therefore, I have formed the view that these activities were done for the sole purpose of strengthening his claims for protection. I therefore disregard these activities in consideration of his protection visa application.[3]
[3] Court Book at 58
The delegate, in making that finding, referred to the provisions of s.91R(3) of the Migration Act 1958.
Application for Review by the Refugee Review Tribunal
On 4th September 2009 the Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. He was represented by a migration agent, Lanshan Gao. The Applicant did not provide any additional documentary evidence when he lodged his application.
The Tribunal wrote to the Applicant on 24th September 2009, inviting him to attend a hearing on 28th October 2009. On 27th October 2009 Mr Lanshan Gao sent a fax to the Tribunal, asking for an adjournment of the hearing due to the fact that the Applicant was ill. A medical certificate was also provided.[4]
[4] Court Book at 75-76
The Tribunal postponed the hearing until 2nd December 2009.[5]
[5] Court Book at 78
The Applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
The Tribunal made its decision on 9th December 2009, affirming the decision not to grant the Applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
In its Decision Record, the Tribunal summarised the Applicant’s evidence to the delegate and to the Tribunal under the heading “Claims and Evidence”. The Tribunal also referred to Independent Country Information, being the United States Department of State’s Country Report on human rights practices: China, published in February 2009.[6]
[6] Court Book at 99
In its Findings and Reasons, the Tribunal accepted that the Applicant was a citizen of the People’s Republic of China, based on:
a)His travel document issued by authorities of that country;
b)His consistent assertion that he was born in China; and
c)His familiarity with “a major language of that country” (Mandarin).[7]
[7] Court Book 103
The Tribunal noted the Applicant’s claim to be at risk of serious harm if he were to return to China by reason of his religious faith as a Christian, but made these adverse findings:
The Tribunal does not believe that the Applicant has presented a truthful account of his fears of return to China, his past experiences in that country, or his reasons for undergoing a baptism in Australia or other conduct in associating with churches in this country.
In the Tribunal’s view, the Applicant has sought to fabricate a claim to be owed protection by Australia, relying on claimed religious faith. His claims of having experienced official interest on return to China in October 2008 are not true in the Tribunal’s view and evidence a willingness on his part to make claims which are not truthful to advance this application.[8]
[8] Ibid at [80] and [81]
The Tribunal referred to a number of inconsistencies in the Applicant’s evidence, which it attributed to fabrication rather than mere errors, saying:
In the Tribunal’s view, the difference in the applicant’s account of these experiences over time is explained by the fact that he is making up these experiences and none of them ever occurred…
In the Tribunal’s view, the inconsistencies are so substantial and so central to the claimed interest in him, that inadvertence or errors in translation do not explain them.[9]
[9] Court Book 104 at [83] and [84]
The Tribunal also considered the applicant’s activities in Australia, including attending various churches and being baptised. The Tribunal made these findings:
The Tribunal has considered whether it can have regard to these matters when assessing whether the Applicant has well-founded fear (of) being persecuted for any Convention reasons and finds that it cannot. The provisions of s.91R(3) require that the Tribunal disregard conduct engaged in by the Applicant in Australia unless the Applicant satisfies the Tribunal that the conduct was engaged (in) otherwise than strengthening his claim to be a refugee. The Tribunal, having considered the available evidence, finds that it is not so satisfied.
In the Tribunal’s view, were the Applicant’s Christian faith and conduct associating himself with churches in Australia for a purpose other than strengthening this claim, he would not have made up a claim having occurred in China when this was untrue. In the Tribunal’s view, the applicant presented obviously untruthful evidence regarding these issues discloses that he will take actions only to advance this claim without regard to the truthfulness or genuine motivation for his actions.[10]
[10] Court Book 104-105 at [86]-[87]
The Tribunal found that it did not believe that the Applicant held a well-founded fear of harm for the reason of being a follower of the Christian faith or for any other reason contemplated by the Refugees Convention. Accordingly, the Tribunal found that the Applicant could not meet the provisions of s.36 of the Migration Act and could not satisfy essential prescribed criteria for a Class XA visa.
The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant filed his application and affidavit in support on 12th January 2010, seeking writs of certiorari and mandamus. He filed a Notice of Change of Address for service on 18th March 2010, but has not filed an amended application or a written outline of submissions.
The Applicant attended Court on the First Court Date, 27th January 2010, when directions were made for hearing. He filled in a form indicating that he wished to obtain legal advice from a lawyer on the RRT panel, and the Court made a referral. However, the lawyer concerned advised the Court that he had been unable to contact the Applicant on the mobile telephone number provided.
The Applicant claimed in his application that:
a)The RRT’s decision was affected by jurisdictional error as it made findings on illogical ground(s).
b)The RRT failed to give me sufficient time to explain the inconsistencies among my claims.
c)The RRT did not give sufficient consideration to the applicant’s claims.
Submissions
The Applicant was asked to expand on the three grounds in his application, but his submissions were mainly concentrated on his complaint that the Tribunal did not give him sufficient time to explain the inconsistencies in his account. He complained that the Tribunal Member cut him off and would not give him sufficient time to answer. He claimed that he should have been given “unlimited time” to clarify the inconsistencies.
The Applicant complained that the Tribunal, having asked him about his studies and being told that his studies were not going well, had raised with him the question that the Tribunal might conclude that he was applying for a protection visa because his studies were not proceeding satisfactorily, implying that his student visa might be cancelled for poor academic performance. The Applicant stated that he was applying for a protection visa because of his religion, and not for any reason to do with his studies.
The Applicant explained his third ground, that the Tribunal did not give sufficient consideration to his claims, by saying that the Tribunal had no right to reject his application simply because it believed that he applied for the visa because his studies were not going well.
The Applicant returned to his major claim that the Tribunal did not give him sufficient time to explain the inconsistencies in his account by stating that the Tribunal hearing only took one and a half hours. He submitted that it should have been longer, at least two and a half hours.
Ms Mills, who appeared for the First Respondent Minister for Immigration and Citizenship, submitted that:
a)The Tribunal gave the Applicant ample opportunity to explain the inconsistencies;
b)The fundamental issue was the Tribunal’s finding about the Applicant’s lack of credibility;
c)The Applicant appeared to be claiming that the Tribunal was biased, which was a claim that he had not made in his application (nor was there any basis for it);
d)The Applicant’s claims about his religious belief as a basis for his claim was an attempt at merits review of his factual claim, which is impermissible in an application for judicial review; and
e)The Applicant’s claim that the Tribunal cut the Applicant off and did not allow him sufficient time to answer the various inconsistencies was not supported by evidence, as he had not submitted a transcript of the hearing.
In her written submissions, Ms Mills submitted that the Applicant’s first ground, jurisdictional error by making findings on illogical grounds, had not been particularised and could be addressed on a general basis.
A decision can be characterised as illogical if it is “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[11] per McHugh and Gummow JJ at [34]). A lack of logic of itself does not amount to an error of law, let alone a jurisdictional error (NACB v Minister for Immigration & Multicultural & Indigenous Affairs[12]).
[11] (2003) 198 ALR 59; [2003] HCA 30
[12] [2003] FCAFC 235
In this case, it was submitted, the Applicant has not provided any evidence that the Tribunal made findings on illogical grounds.
As to the Applicant’s second ground, that the Tribunal failed to give the Applicant sufficient time to explain the inconsistencies in his claims, Ms Mills submitted that the Tribunal did give the Applicant the opportunity to explain the inconsistencies in his claims, and drew the Court’s attention to page 96 of the Tribunal decision, and offered the Applicant the opportunity to make comments on the information he had given to the Department during his interview. He was advised that he could ask for additional time to make comments.
Ms Mills submitted that the Applicant’s third ground, the claim that the Tribunal did not give sufficient consideration to the Applicant’s claims, had not been made out. Her submission was that:
a)The Tribunal invited the Applicant to attend a hearing, rescheduled at his request;
b)The Tribunal; set out the applicant’s claims in its decision (at pages 88 to 99 of the Court Book);
c)The Tribunal afforded the applicant an opportunity to explain the inconsistencies in his evidence (at page 96 of the Court Book);
d)The Tribunal’s findings are based on the Applicant’s claims, which the Tribunal considered and rejected on the basis of the fundamental lack of credibility of the Applicant’s evidence; and
e)The Tribunal’s findings were open to it on the evidence before it.
It was submitted for the Minister that all of the Applicant’s grounds are without merit and must fail.
Conclusions
As I mentioned at [26] above, whilst the Applicant relies on three grounds of review his oral submissions mainly concentrate on his second ground, his complaint that the Tribunal did not give him sufficient time to explain the inconsistencies in his evidence.
I agree with the Minister’s submission that the main reason why the Tribunal dismissed the Applicant’s claims was that it was not satisfied about the credibility of the Applicant’s evidence.
The Applicant’s first ground complains that the Tribunal’s decision was affected by jurisdictional error as it made findings on illogical grounds. He provides no particulars of that claim and no evidence to show that there was any illogicality in the Tribunal’s reasoning. It remains an unsupported assertion.
In any event, the question of illogicality as a ground of review is of little assistance. The Full Court of the Federal Court has held that want of logic does not of itself constitute an error of law (NATC v minister for Immigration and Multicultural and Indigenous Affairs[13] and also M153 of 2004 & Ors v Minister for Immigration[14] at [38]). In NACB v Minister for Immigration and Multicultural and Indigenous Affairs[15] the Full Court held that there was nothing in the remarks of the High Court in Applicant S20/2002[16] that would warrant a departure from the earlier line of decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdictional error.
[13] [2004] FCAFC 52
[14] [2006] FMCA 42
[15] supra
[16] supra
The Applicant’s first ground of review has not been made out.
The Applicant’s second ground of review claims that the Tribunal failed to give him sufficient time to explain the inconsistencies among his claims.
No transcript of the hearing has been provided, and the only record of what went on at the hearing is the Tribunal’s Decision Record. That Decision Record shows that the Tribunal asked the Applicant to clarify a number of discrepancies in his account. One example is set out in paragraph [61] of the Tribunal decision:
The applicant was asked about some differences between his written application provided to the Department and his evidence at the hearing.[17]
[17] Court Book 96
The Tribunal then set out in some detail in the rest of that paragraph the Applicant’s answer by way of explanation.
The Tribunal then sets out details of its questioning of the Applicant and the Applicant’s explanations in paragraphs [64] to [68] and again at [73]:
The applicant was asked about differences between his written statement provided to the Department and his evidence to the Tribunal.[18]
[18] Court Book 98
There is nothing in the Tribunal Decision Record that indicates that the Applicant was in any way cut off or hindered in answering the Tribunal’s questions about the discrepancies in his evidence. In any event, the Tribunal offered him the opportunity to seek additional time to make comments, as provided by s.424AA of the Migration Act:
The applicant was asked whether he wished to make comments on information which he had given to the Department orally during his interview. He was advised that he could seek additional time in which to make his comments. The differences between his claims to the Department about how the meetings started and the evidence given before the Tribunal was discussed.[19]
[19] Court Book 96-97 at [64]
It is clear that the Applicant did not take up the opportunity offered to him to make additional comments after the hearing.
I am satisfied that the Applicant was not denied any opportunity to explain the inconsistencies in his account of his refugee claims and consequently his second ground of review has not been made out.
The Applicant’s third ground claims that the RRT did not sufficient consideration to his claims.
The Tribunal invited the Applicant to attend a hearing, as required by s.425 of the Act. He attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language.
At the hearing the Tribunal put to the Applicant the discrepancies in his claims and gave him the opportunity to explain those discrepancies. The delegate had not been satisfied as to the credibility of the Applicant’s claims, so he should have been aware that the Tribunal would also be examining the credibility of his claims very closely.
It was appropriate for the Tribunal to ask the Applicant about the progress of his studies, at paragraph [51] of the decision.[20] The Tribunal was entitled to test the Applicant’s evidence.
[20] Court Book 94
The Tribunal put squarely to the Applicant its concerns about the credibility of his evidence, as set out in paragraph [74] of the decision.[21] The inconsistencies in his story were put to him and he was given the opportunity to explain them, even to make a further submission if he needed extra time.
[21] Court Book 98.
The Tribunal decision sets out the details of the Applicant’s claim for protection and there is nothing to show that it overlooked or failed to consider any part of the Applicant’s claim.
The Tribunal also discussed with the Applicant the effect of s.91R(3) of the Act in respect to his evidence about his activities in Australia.[22]
[22] Ibid at [75]
The Tribunal’s decision was open to it on the evidence before it. There is nothing to show that the Tribunal did not give sufficient consideration to the Applicant’s claims by failing to take a relevant matter into consideration.
The Applicant’s third ground of review fails.
The Applicant is not legally represented in these proceedings. I have considered whether any arguable case for a jurisdictional error can be made out in any matter not referred to by the Applicant. I can see none.
There is no breach of s.424A of the Migration Act. The Tribunal complied with the requirements of s.425 of the Act in inviting the Applicant to a hearing, rescheduling the hearing due to his illness, providing him with an interpreter and thoroughly examining the relevant issues at the hearing. There is no breach of s.91R(3) of the Act.
There is no jurisdictional error apparent. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision (s.474) and not, therefore, subject to orders in the nature of certiorari or mandamus.
It follows that the application will be dismissed with costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 5 May 2010
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