SZOGK v Minister for Immigration
[2010] FMCA 466
•30 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOGK v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 466 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s decision was affected by reason of migration agent fraud. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91R(3); 424AA; 474; pt.8 div.2 |
| Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41 SZLHP v Minister for Immigration and Citizenship & Another (2008) 172 FCR 170 SZFDE v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZOGK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 607 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 30 June 2010 |
| Date of Last Submission: | 30 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Mr P. Reynolds |
| Solicitors for the Respondent: | Ms J. Dinihan, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 607 of 2010
| SZOGK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
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 22 February 2010 and handed down the same day.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
The Applicant arrived in Australia on 2 December 2007 having departed legally from Baiyan on a passport issued in her own name and a Student Guardian (subclass TU580) visa issued on 22 October 2007.
On 30 July 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 28 October 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 16 December 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 22 February 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 19 March 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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.
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”).
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.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by the Chinese authorities by reason of her Christianity.
The Applicant claimed she became interested in Christianity through a friend of her and her husband’s and was at an illegal Christian gathering on 26 January 2007 which was raided by police. She claimed the police confiscated Christian literature and she was arrested and detained for seven days, during which time she was beaten.
Following her release, the Applicant claimed the police continued to harass her “from time to time” and stole from her shop.
The Applicant claimed that in May 2007 her daughter asked to go abroad to study. As a result, the Applicant and her daughter came to Australia on 1 December 2007.
Since arriving in Australia, the Applicant claimed she attended a Chinese church in Strathfield regularly and sent Christian materials to her husband in China. The Applicant claimed that on 1 July 2009 her sister rang from China to tell her that her husband had been arrested during a police raid on her home for illegal Christian activities. She claimed her husband was sentenced to six months re-education and ordered to confess. The Applicant claimed that police “kept torturing him and fiercely beat him”. As a result, the Applicant claimed her husband told police that the Applicant had sent him Christian material from Australia.
The Applicant claimed she feared that if she returned to China she would be put into prison.
The Delegate’s decision
On 20 October 2009, the Applicant attended an interview with the Delegate. The Delegate was not satisfied about the Applicant’s claims to be a Christian and to have been involved with an underground church in China. The Delegate noted that the Applicant provided no evidence at all to support any of her claims and that her lack of knowledge about the Christian religion did not support her claims.
On 28 October 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 26 November 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided a pamphlet from Sydwest Asian Christian Church in support of her review application.
On 23 December 2009, the Tribunal wrote to the Applicant informing her 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 Applicant to attend a hearing on 5 February 2010 to give oral evidence and present arguments.
On 5 February 2010, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department and Tribunal files relating to the Applicant.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“THE TRIBUNAL’S DECISION
9. The Tribunal’s reasons appear at [46]-[62] of its decision (CB105-108).
10. The Tribunal did not accept the Applicant’s claims for a number of reasons.
11. First, it considered that the Applicant’s evidence at the hearing and Departmental interview demonstrated that she had a superficial and limited knowledge of Christianity and Christian religious practice, and her responses at hearing demonstrated that she did not have a genuine conviction and commitment to Christianity. The Tribunal did not accept the explanations advanced by the Applicant in this regard (Tribunal Decision, [48]-[50]).
12. Second, the Applicant had a very limited knowledge of the Bible, which was of concern to it (Tribunal Decision, [51]).
13. Third, the Applicant was not baptised, whereas the Tribunal considered that if the Applicant’s religion was as important to her as she claimed, she would have made the efforts to get baptised given the importance of baptism in the Christian faith (Tribunal Decision, [52]).
14. Fourth, the Applicant’s evidence regarding the underground gatherings that she had attended was vague and lacking in detail, whereas the Tribunal would have expected her to have provided more information given that she had claimed to have participated in these activities for several years (Tribunal Decision, [53]).
15. Fifth, the Applicant had provided inconsistent evidence as to when and how she had become a Christian (Tribunal Decision, [54]-[55]).
16. For the above reasons, the Tribunal did not accept that the Applicant was a genuine committed Christian who practised Christianity and who would continue to practice Christianity upon her return to China, that she lived in a Christian household, that she and her husband were Christians, or that they had attended underground church gatherings as claimed (Tribunal Decision, [56]).
17. The Tribunal went on to state that it doubted that the Applicant had been arrested as claimed given that she could not remember the date, despite its significance (Tribunal Decision, [57]). Given this and the Applicant’s lack of knowledge about Christian beliefs and practices, it also rejected the balance of the Applicant’s claims (Tribunal Decision, [58]).
18. The Tribunal went on to specifically note:
a) that the Applicant was not a credible witness (Tribunal Decision, [59]);
b) it did not accept that she would practice Christianity upon her return nor that she had previously been a genuine practitioner, or that she would be investigated, arrested or detained by the police as a result (Tribunal Decision, [60]);
c) although the Tribunal accepted that the Applicant had occasionally attended a church in Australia, it found that she did not do so as a genuine committed Christian or that she had become a genuine Christian. It therefore disregarded the Applicant’s conduct in Australia pursuant to section 91R(3) of the Act (Tribunal Decision, [61]-[62]).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 22 April 2010, the Applicant attended a directions hearing before me and was 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. At that time, the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which she may wish to rely was verified by affidavit. On that occasion, I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. The Applicant confirmed that she wished to continue with her application.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received 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.
At the commencement of the hearing, the Applicant confirmed that she relied on the grounds contained in her initiating application filed on 19 March 2010. She also confirmed that she had not filed an amended application, evidence or submissions in support of her application.
However, the Applicant provided to the Court a document in the nature of submissions which stated, inter alia, that she had “memory issues”. She sought to tender a medical report in support of that assertion. The tender was objected to by the First Respondent and ultimately rejected on the grounds of relevance in separate reasons given by me at the time. Essentially, the report made no mention of any memory difficulty on the part of the Applicant. The report post-dated the Tribunal hearing and confirmed that the Applicant had no mental illness or cognitive deficit. However, the report did state that the Applicant suffered from depression for which she was being treated.
The Applicant made no specific application to the Court that she was suffering from a medical condition that prevented her from representing herself before this Court. Neither did the Applicant clearly articulate to this Court a complaint that she had been deprived of a meaningful opportunity to give evidence and present arguments at the Tribunal hearing because of any particular medical condition, including memory loss.
In any event, the Tribunal noted in its decision record that the Applicant said she could not remember things well when the Tribunal put to her concerns it had about her lack of knowledge or understanding of key aspects of Christian beliefs and practice and other inconsistencies in her evidence. The Tribunal noted that the Applicant did not provide any medical evidence in support of her claimed memory problems. The Tribunal did not accept that assertion as a satisfactory explanation for matters of concern that it put to the Applicant about her evidence. The absence of any such evidence does not establish that the hearing before the Tribunal proceeded on a false assumption about the Applicant’s ability to “give evidence and present arguments relating to the issues arising under review” (See Minister for Immigration and Citizenship v SZNVW and Anor [2010] FCAFC 41 at [19] per Keane CJ).
The grounds of the application are as follows:
“1. My agent had lied to RRT without my consent and he had also asked me to lie because he said it’d be for my own good. He had even provided a wrong name for the church I’ve been to all the time. While I was at interview with the RRT officer, I was under great pressure. I didn’t know what to do or what to say. I was completely lost.
2. After the interview I have been waiting for the instruction from RRT and my agent. I was advised that RRT would ask me to provide further information in writing. I had prepared to provide further information and tell the Member the truth. But I received the decision rather than a request letter to ask me to provide further information.”
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.
Ground 1
Ground 1 appears to assert that the Applicant’s migration agent lied to the Tribunal without her consent and told her to lie to the Tribunal for her own good. Ground 1 was unsupported by particulars, evidence or submissions.
I informed the Applicant that there was no evidence presently before the Court to support the allegations in the grounds of her application and explained to the Applicant that she would have to seek the leave of the Court if she wished to give that evidence orally. The Applicant duly sought leave which was opposed by the First Respondent on the grounds of relevance. Whilst I accept that anything the migration agent may have said to the Applicant after the hearing, as alleged in Ground 2, was not capable of establishing a jurisdictional error on the part of the Tribunal, the Applicant’s evidence about what she may have been told by her agent in relation to the review and her subsequent conduct may be relevant. For that reason, leave was granted to the Applicant to give evidence orally in support of her application.
In oral evidence, the Applicant said that she met the migration agent, whose name she does not recall, through friends. She said that the migration agent and his wife told her that she did not seem to know very much about the Bible and that she should tell the Tribunal that she had just become a Christian. The Applicant said that the agent told her that he would tell her what to say. The Applicant stated that, when the Tribunal asked her if she had been baptized, she answered ‘no’ because the migration agent had told her to give that answer. The Applicant said that she had in fact been baptized but that the agent told her that if she answered ‘yes’ the Tribunal would expect her to know more about the Bible. Otherwise, the Applicant could not remember what the migration agent asked her to say except that there were other lies that she told the Tribunal at the direction of the agent. In cross-examination the Applicant agreed that she knew they were lies but that the agent had told her to lie because it would help her protection visa application.
In the light of the Applicant’s evidence, I find that she knowingly told lies to the Tribunal, albeit at the behest of her agent, in order to assist her protection visa application.
In the circumstances, there is no fraud on the Tribunal. The Applicant cannot rely on her own fraud or the fraud of her agent in which she was complicit to establish that the Tribunal decision was invalid (SZLHP v Minister for Immigration and Citizenship & Another (2008) 172 FCR 170 at pp175-176 (“SZLHP”)). The Applicant was not fraudulently deceived by the migration agent. She knew she was being asked to lie and, in the belief that it would assist her application to lie to the Tribunal, she proceeded to lie. She understood she was lying and cooperated with the agent in being untruthful with the Tribunal. There was no relevant fraud on the Tribunal in the sense discussed by the High Court of Australia in SZFDE v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189 per the Court. As Lindgren J said in SZLHP at [28] “it would be perverse if a person whose fraud practised on the Tribunal had caused it not to afford that person natural justice could be heard to complain”.
Accordingly, the Applicant’s complaint in Ground1 is not made out.
Ground 2
Ground 2 appears to assert that the Applicant’s agent told her after the Tribunal hearing that the Tribunal would ask her to provide further information in writing. In Ground 2 the Applicant stated that she “had prepared to provide further information and tell the Member the truth”, however, she received the decision rather than a request letter seeking further information. The Applicant provided no further particulars, evidence or submissions in support of Ground 2. Neither did the Applicant provide to this Court any evidence of any further information she may have told the Tribunal Member, had she been invited to do so.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 22April 2010 the Applicant was 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.
The Tribunal’s decision record makes clear that the Tribunal put to the Applicant concerns it had about inconsistencies in her oral evidence at the hearing, being internal inconsistencies and evidence that was inconsistent with what she said at the Departmental interview. The Tribunal’s decision record makes clear that the Tribunal gave to the Applicant clear particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review and inviting her to comment. The Tribunal also stated that it asked the Applicant if she wished to seek additional time to comment on or respond to the information and noted the Applicant’s response that she did not wish to have additional time. In the circumstances, the information was given to the Applicant in accordance with s.424AA of the Act.
Accordingly, the factual foundation necessary to establish Ground 2 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims; understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it, including accepting that the Applicant had attended church in Australia and attended a baptism ceremony. However, the Tribunal was not satisfied that the Applicant engaged in such conduct in Australia otherwise than for the purpose of strengthening her refugee claims. Accordingly, the Tribunal disregarded the conduct engaged in by her in Australia in accordance with s.91R(3) of the Act. The Tribunal found that the Applicant is not a credible witness and comprehensively rejected her claims of having been a Christian in China or having been persecuted, arrested or detained for that reason. The Tribunal did not accept that the Applicant sent religious materials back to her husband or that her husband had been arrested and detained as claimed. The Tribunal found that the Applicant would not participate in underground church gatherings if she returned to China and did not accept that she would be investigated, arrested or detained by the police for reasons of her religious activities, if she returned to China.
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 Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
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.
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.
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.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 30 June 2010
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