SZOFT v Minister for Immigration

[2010] FMCA 388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOFT & ANOR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 388

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91R(3); 424A; 425A; 474; pt.7 div.4; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 162 ALR 1
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
SZBYRv Minister for Immigration & Citizenship (2007) 235 ALR 609

First Applicant: SZOFT

Second Applicant: SZOFV

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 552 of 2010

Judgment of: Emmett FM

Hearing date: 3 June 2010

Date of Last Submission: 3 June 2010

Delivered at: Sydney

Delivered on: 3 June 2010

REPRESENTATION

First applicant in person assisted by an interpreter in Fuqing

Counsel for the Respondent: Ms L. Clegg

Solicitors for the Respondent: Ms B. Rayment, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 552 of 2010

SZOFT

First Applicant

SZOFT

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 February 2010 and handed down on 18 February 2010.

2. The first named applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”). The second named applicant is the son of the Applicant and his claims are wholly dependent on the claims of the Applicant.

3. The Applicant arrived in Australia with her son on 16 December 2007, having departed legally from Baiyun Airport on passports issued in their own names. The Applicant entered Australia on a subclass 580 Student Guardian visa issued on 23 November 2007. The Applicant’s son entered Australia on a subclass 571 Student visa.

4. On 24 July 2009, the Applicant lodged an application for protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”) under the Act.

5. On 12 October 2009, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas.

6. On 8 November 2009, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

7. On 17 February 2010, the Tribunal affirmed the decision of the Delegate not to grant protection visas.

8. On 15 March 2010, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The applicants’ application for protection visas

1. The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by the Chinese government by reason of her Christianity. She claimed she began to learn Christianity in 2004.

2. The Applicant claimed that, on 29 April 2007, a Christian gathering she was attending was interrupted by police who confiscated Christian books and papers and arrested seven attendees. The Applicant claimed she was arrested and detained for a night, interrogated, accused and beaten until she signed a “repent letter”. She claimed she was threatened with jail if she attended an “illegal gathering” again and “educated… with patriotism”. She claimed she continued to attend gatherings until she spoke with another Christian woman about going overseas. The Applicant and her husband then decided to leave China and send their son to study in Australia. The Applicant stated that she came to Australia with her son on 16 December 2007. The Applicant stated that she attended a Chinese church in Sydney. She stated that her husband and daughter remain in China.

The Delegate’s decision

1. On 10 September 2009, the Applicant attended an interview with the Delegate where she provided photographs of her attending a Christian gathering.

2. On 12 October 2009, the Delegate refused the applicants’ application for protection visas on the basis that the applicants are not people to whom Australia has protection obligations under the Convention.

3. The Delegate’s decision is accurately summarised in the written submission of counsel for the First Respondent, Ms Clegg, as follows:

   “The delegate found a number of the first applicant’s claims internally inconsistent or not plausible. The delegate found the testimony of the first applicant “vague rehearsed and contrived”. The delegate was particularly concerned at the first applicant’s inability to provide any detail or evidence of her claimed activities in China, which led the delegate to reject the first applicant’s factual claims. The delegate also expressed concern about the motivation of the first applicant in coming to Australia and the 18 month delay in seeking a protection visa. The delegate referred to independent country information which revealed that the first applicant’s ability to leave China legally and on her own passport revealed that she did not have a political or religious profile that would attract adverse attention in China. Finally, the delegate found that the first applicant’s church attendance in Sydney had been embarked upon “with the sole purpose of assisting her claims for protection”. The delegate therefore disregarded those claims in accordance with s 91R(3) of the Act: CB 60 - 63.”

The Tribunal’s review and decision

1. On 8 November 2009, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 2 December 2009, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 6 January 2010 to give oral evidence and present arguments.

3. The Applicant attended the hearing on 6 January 2010 with a witness but without her son. The Tribunal noted in its decision record that it was not clear whether the son was aware of the hearing or his right to attend and so adjourned. The Tribunal noted that it took evidence from the witness before adjourning the hearing as it was uncertain whether the witness could attend at another time.

4. The hearing was resumed on 8 November 2010 with the Applicant and her son present and both applicants gave evidence.

5. The review and the decision of the Tribunal are accurately summarised by counsel for the First Respondent in her written submissions as follows:

   “14. At the hearings before the Tribunal a witness attested to the genuineness of the first applicant’s religious convictions. The second applicant gave evidence about his motivation for coming to Australia, the cancellation of his student visa in Australia, and the circumstances surrounding his mother’s claimed arrest in China. He also answered questions about his claimed attendance at Church in Australia.

   15. The first applicant answered questions about the apparent inconsistencies between hers and her son’s evidence about her arrest in China, the circumstances relating to the cancellation of the second applicant’s student visa, her attendance at church in Australia and her religious beliefs in general. 

   …

   17. The Tribunal’s statement of decision and reasons reveals that it comprehensively discussed and considered the claims and evidence of both the first and second applicants. 

   18. The Tribunal gave consideration to whether the first applicant’s claimed poor memory, dizziness, nervousness, or alternatively her claimed illiteracy had in any way hindered her ability to give evidence, present her arguments, or respond to the s 424A letter. The Tribunal concluded that these matters had not prevented the applicant from giving truthful answers, or responding in a meaningful way to the questions of the Tribunal throughout the period of the review.[1]

   19. The Tribunal’s decision, together with a s 424A letter sent to the first applicant after the hearing,[2] reveal the many observed inconsistencies in the first and second applicants’ claims and evidence.

   20. In its Findings and Reasons the Tribunal set out in substantial detail the reasoning for its conclusion that the first applicant’s underlying claims were not true.  Like the delegate, the Tribunal simply did not accept that the first applicant was ever a member of the Church in China that she claimed to have joined.[3] The Tribunal rejected the claim that the first applicant had introduced her son to any Christian group and positively found that neither applicant “were involved in any church in the PRC prior to coming to Australia, authorised or unauthorised.”.[4] This led the Tribunal to reject outright the first applicant’s claims that she had been arrested by Chinese authorities in a raid on her local church.

   21. Again, like the delegate, the Tribunal accepted that the first applicant had attended the Local Church in Sydney (but only from April 2009, not from 2008 as claimed). The Tribunal also accepted that the first applicant was baptised in Sydney in June 2009. However the Tribunal did not accept that the first applicant’s claimed religious beliefs were genuine. The Tribunal observed that the first applicant appeared to have “scant familiarity with the main teachings of the Local Church. The Tribunal found that and that the first applicant had affiliated herself with the local Church in Sydney for the purpose of strengthening the refugee claims for herself and her son. Accordingly, as required by s 91R(3), the Tribunal disregarded this conduct for the purposes of assessing the first applicant’s claim to be a refugee.

   22. The Tribunal separately considered the second applicant’s own claim that he had attended church in Sydney with his mother (in circumstances where his mother had given evidence that he had not).[6] Not surprisingly, the Tribunal found that the second applicant had not attended Church in Sydney and that he did not hold any genuine Christian beliefs.

   23. The Tribunal ultimately concluded that the applicants did not come to Australia to seek protection from Convention related persecution, as claimed. The Tribunal gave more weight to their claims that they had in fact come to Australia to advance the second applicant’s education. The Tribunal observed that the delay and the evident timing of the application for a protection visa at a time when the first applicant’s visa was (in her words) “due” indicated that her behaviour that was inconsistent with a well founded fear of persecution.”

   [1] CB 150 – 151 at [193] – [196]. See  Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 151; Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41 per Keane CJ at [30] – [38], Emmett J at [49] and Perram J at [87].

   [2] CB 117 – 119.

   [3] CB 154 at [217] – [218]

   [4] CB 154 at [219]

   [6] CB 141 at [154].

The proceeding before this Court

1. On 15 April 2010, the Applicant attended a directions hearing before me on behalf of both applicants. I explained to the Applicant that the grounds of the application made bare assertions that did not disclose an error capable of review by this Court. I explained that they were unsupported by particulars or explanations. The applicants were referred to the Court’s legal advice scheme for free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.

2. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit.

3. The applicants were unrepresented before this Court, although had the assistance of a Fuqing interpreter. At the hearing, the Applicant informed the Court that she appeared on her own behalf and on behalf of the second applicant, her son, who did not attend Court. The Applicant confirmed to the Court that her son’s claims were entirely dependent on her own and that he had no independent claims of his own.

4. The Applicant confirmed that no other documents had been filed by or on behalf of the applicants, either in accordance with the directions of the Court or otherwise. The grounds of the application are as follows:

   “1. RRT failed to consider the risk for us to go back. RRT did not make fair decision for us.

   2. We did not go to church to strengthen our refugee claims. We serve God in our life.

   3. Procedural Fairness has been denied. RRT did not use favourable cases to our application.”

5. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally. The Applicant made no meaningful submission in support of any of the grounds, save to say that she was really persecuted in China where she was already a Christian and that all other people in the Shouter’s Church are protected except her.

6. In the circumstances, none of the grounds are supported by particulars, evidence or submissions. They are all more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 41 per Mason J).

7. It is clear from the bundle of relevant documents tendered to the Court and marked Exhibit 1A, that the applicants were invited by letter, dated 2 December 2009, to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case. That letter was sent in accordance with s.425A of the Act.

8. The Applicant’s son did not attend the scheduled hearing on 6 January 2010 and for that reason the hearing was rescheduled to 8 January 2010 to allow both applicants to appear before the Tribunal. Before adjourning on 6 January 2010, the Tribunal heard evidence from the applicants’ witness. Both applicants attended the hearing on 8 January 2010 and gave evidence and presented arguments.

9. Following completion of the hearing, the Tribunal wrote to the applicants on 13 January 2010 inviting the applicants to comment on or respond to information that the Tribunal considered may be the reason or part of the reason for affirming the decision under review. The information largely related to inconsistencies between the evidence of the applicants, as well as information from the Department about breached conditions of the second applicant’s student visa in early 2008 leading to the cancellation of that student visa.

10. The Tribunal’s decision record accurately summarised the written claims of the Applicant. The decision record referred to two religious photographs taken in Sydney provided by the Applicant to the Department. One depicts the Applicant being immersed in a domestic “bathtub/spa” and is described as the Applicant being “baptised at home”. The Applicant also provided an undated letter from two persons from her local church in Sydney attesting to her attendance regularly since April 2009.

11. The decision record then summarises the exchanges the Applicant had with the Delegate at an interview and the Delegate’s decision.

12. There was no transcript of the Tribunal hearing provided to this Court, nor did the applicants provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 15 April 2010 the applicants were given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure any such transcript was verified by affidavit. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing, however, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

13. The Applicant’s witness attested to having first met the Applicant at a gathering of the local church in Blacktown in March or April 2009. The decision record states that “the witness said that the Applicant had struck her as “quite devoted” even though she “didn’t know things’”. The decision record states that the witness told the Tribunal that she believed the Applicant to be a true Christian from the time they met in March/April 2009.

14. The Tribunal’s decision record discloses exchanges the Tribunal had with the son and matters of concern that it put to the son about his evidence and noted the son’s responses.

15. The Tribunal explored with the Applicant her claims and evidence in great detail. The Tribunal also noted in detail matters of concern it put to the Applicant about her evidence and noted her responses. The Tribunal also put to the Applicant its concerns about her delay in seeking a protection visa in circumstances where the Applicant had arrived in Australia on 16 December 2007, yet did not lodge an application for a protection visa until 24 July 2009. The Tribunal noted the Applicant’s responses.

16. The Tribunal quoted in full its letter written to the Applicants pursuant to s.424A of the Act and noted in detail the Applicant’s response received on 4 February 2010.

17. The Tribunal accepted that people in China can and do face arrest, detention and other forms of serious harm if they are members of the Local Church because the Local Church “is officially banned in the PRC and labelled as an “evil cult””. The Tribunal also identified independent country information to which it had regard. Ultimately, the Tribunal found it unnecessary to attribute weight one way or the other about the treatment of the Local Church in China because of its comprehensive rejection of the Applicant’s claims and evidence to have been a Christian and member of the Local Church in China and to have been persecuted for that reason.

1. A fair reading of the decision record makes clear that the Tribunal gave careful and thorough consideration to the Applicant’s claims and evidence, including the evidence of the witness and supporting documents.

2. The Tribunal accepted that the Applicant was baptised in June 2009, however, found that the Applicant had engaged in such conduct in Australia for the sole purpose of strengthening her refugee claims. The Tribunal found that “she did so for no other reasons”. Accordingly, pursuant to s.91R(3) of the Act, the Tribunal disregarded her conduct in Australia for the purpose of determining whether the Applicant has a well-founded fear of persecution for a Convention-related reason.

3. The Tribunal found that the Applicant was not associated with any unauthorised church in China, not because she feared persecution for doing so but, rather, “because she is not genuinely interested and does not genuinely hold Christian beliefs”. On the evidence before it, the Tribunal did not accept that the Applicant would be imputed by anyone in China to be associated with any unauthorised religious group.

4. The Tribunal noted that it gave weight to the Applicant’s written claim that she came to Australia with “the intention of providing an educational opportunity for the son”. The Tribunal noted that it gave weight to the fact that the applicants had left China legally and “without administrative or any other official impediment”.

5. The Tribunal was not satisfied that the applicants face a real chance of Convention-related persecution in China and, accordingly, affirmed the decision under review.

6. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the decision maker (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

7. It is clear from the Tribunal’s decision record that the applicants were given a meaningful and real opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. In particular, the Applicant’s credibility was an issue before the Delegate and should have been sufficient to indicate to the Applicant that everything she said in support of her application remained in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at 600 – 602).

8. The Tribunal put concerns it had about the applicants’ claims and evidence in writing to the applicants in accordance with s.424A of the Act and had regard to the applicants’ responses. Otherwise, the information relied upon by the Tribunal in affirming the decision under review was made up of inconsistencies, absence of evidence and thought processes of the Tribunal. That is not information that enlivens any obligation on the part of the Tribunal to put to the Applicant (SZBYRv Minister for Immigration & Citizenship (2007) 235 ALR 609 at 16 and 17).

9. In the circumstances, I accept the submission of counsel for the First Respondent that there is no material before the Court to suggest that the natural justice hearing rule, as codified by Part 7 Division 4 of the Act has not been complied with.

10. Accordingly, none of the grounds of the application are made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the applicants at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence, both at the hearings and in writing, and noted the applicants’ responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:  E. Oliver

Date:  3 June 2010

[5] CB 151 at [198] – [204- [ [207]