SZOIF v Minister for Immigration
[2010] FMCA 645
•28 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIF v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 645 |
| MIGRATION – Review of decision of Refugee Review Tribunal – findings of fact reasonably open to Tribunal – no failure to comply with s.424 – applicant seeking impermissible merits review – Tribunal complied with procedural fairness obligations – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 424, 424AA, 424A, 425, 476 |
| Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; (2009) 259 ALR 595; [2009] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 |
| Applicant: | SZOIF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 785 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 June 2010 |
| Date of Last Submission: | 28 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr P D Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 9 April 2010 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 785 of 2010
| SZOIF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
I have before me today an application made on 9 April 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”). This seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 February 2010, which affirmed an earlier decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The Minister has put a bundle of relevant documents before the Court (“Court Book” – “CB”). I note the following background.
The applicant before the Court today is a National of the People’s Republic of China (“China”) who arrived in Australia on 29 December 2005. She applied for a protection visa on 17 August 2009 (see CB 1 to CB 50, with annexures). Her son, who was also physically present in Australia at that time, was also an applicant. He subsequently withdrew that application (CB 1, CB 74, CB 75 to CB 77).
Claims to Protection
The applicant initially set out her claims to protection in her protection visa application.
She claimed to be a Christian who attended a “family church” which was an illegal underground church in China. Further, that she organised religious gatherings at her home and evangelised. During a particular meeting she and others were apprehended and she was detained for five days. She was released because of the intervention of her employer. She was warned, and she was worried about her “family future”. With the assistance of her son, who was studying in Australia, she came to Australia. She claimed to have been attending Christian church services after arrival in Australia (CB 18).
The applicant also made statements that there was suffering of brothers and sisters in China, and that China was a “lawless society” controlled by the Communist Party. She feared that she would be detained and that she would be under surveillance by the authorities if she were to return to China (CB 19 to CB 20).
The Delegate
The applicant attended an interview with the Minister’s delegate in October 2009. She expanded her claims by referring to an investigation by the government of her church brothers and sisters, that she was investigated by the government and was dismissed from her employment as a director of a particular company.
The delegate was not satisfied that the applicant would be persecuted if she were to return to China (CB 92). The delegate did not accept most of the applicant’s claims of what she said had occurred in China because he found that there were inconsistencies, vague aspects of her evidence, implausibilities in her evidence, contradictions with country information, and also the length of time that the applicant had taken after arrival in Australia to make her protection visa application.
Further, the delegate did not accept that if the applicant were to return, that she could not safely worship in state-sanctioned churches. Alternatively, if she worshipped in an underground church it would not, on its own, bring her to the adverse attention of the authorities (CB 89 to CB 92). The delegate refused the application.
The Tribunal
The applicant then sought review by the Tribunal on 14 December 2009 (CB 96 to CB 100). She was invited to attend a hearing before the Tribunal scheduled for 10 February 2010 (CB 101).
By letter dated 24 December 2009 the Tribunal invited the applicant to comment or respond to certain information (CB 108 to CB 110). The applicant responded by letter dated 18 January 2010 (CB 113 to CB 117). The applicant then attended the hearing at which she and a witness, Pastor Yeung, gave evidence (CB 123, [36] at CB 136).
The Tribunal rejected the applicant’s core claims because it found her “not a person of credibility and that she has been untruthful in her evidence with respect to events in China” ([85] at CB 148), because of her “vague and inconsistent” evidence, various implausibilities including the delay in lodging a protection visa application, and her inability to provide satisfactory explanations for the deficiencies in her evidence.
The Tribunal found that a letter, which the applicant had provided and said to be from her employer, was not genuine. It came to this view having regard to the concerns about the applicant’s credibility and general information about the availability of fraudulent documents in China (Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50).
While the Tribunal accepted the applicant’s claim that she had been attending church while in Australia, it found that she had done so only to strengthen her claims to be a refugee. It rejected her claim to be a practising Christian in China, and disregarded her practice of Christianity in Australia pursuant to s.91R(3) of the Act ([89]-[90]).
Having found that the applicant did not meet the definition of refugee, the Tribunal affirmed the delegate’s decision.
Application to the Court
The application put before the Court contains seven numbered grounds, some with particulars.
Before the Court
At the hearing before the Court today the applicant appeared in person. She was assisted by an interpreter in the Fuqing language. Mr P Reynolds of counsel appeared for the Minister.
Before the Court the applicant asserted that the Tribunal’s decision was wrong and that she had been persecuted in China. Second, that the contents of her application, what she told the Minister’s department, and what she told the Tribunal at the hearing were true, but that she was so nervous she made mistakes.
Consideration
Ground One
In ground one the applicant claims that:
“The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the applicant have a well-founded fear of persecution for a Convention reason of the grounds of religious.”
It must be said that on any plain reading of its decision record I cannot see that the Tribunal misunderstood the relevant test or failed to properly apply it.
Nor, beyond mere assertion, has the applicant told the Court why the Tribunal failed in this regard. The Tribunal set out the relevant principles in the usual unexceptional terms in its decision record. Far more importantly, there is nothing in its analysis or its presentation of the applicant’s claims to show that it failed to understand and apply the correct test.
The relevant statutory regime that governs a matter of this type, I refer here to ss.65 and 36(2) of the Act, requires the Tribunal to reach a requisite level of satisfaction that the applicant is owed protection obligations by Australia. If the Tribunal reaches the level of satisfaction then the protection visa must be granted. If not, it must be refused (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] to [16]). Such an obligation is engaged if the applicant is found, in effect, to meet the definition of refugee that is set out in Article 1A(2) of the UN Refugees Convention.
A plain reading of the Tribunal’s decision record reveals that it did not believe the applicant’s factual claims as to relevant events in China. It gave cogent reasons for this. The findings of fact that informed this decision were all reasonably open to the Tribunal on what was before it. As was said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, findings of fact, including findings on credibility, are for the Tribunal to make in the proper exercise of its function.
I cannot see error as it is said to arise from ground one.
Ground Two
In ground two the applicant alleges that the Tribunal failed to comply with s.424(3) of the Act in relation to the applicant’s provision of information from the “Sydwest Asian Christian Church”.
I note the terms of s.424 of the Act, which is concerned with the Tribunal being given the power to seek information. As the applicant asserts in her ground, the Tribunal indeed noted the evidence that the applicant had provided in relation to her church attendance in Australia. These included a number of statements and also the written and oral evidence of Pastor Yeung. But the Tribunal found that her attendance at church in Australia was conducted not other than for the sole purpose of strengthening her claims to be a refugee. It therefore properly disregarded this conduct pursuant to s.91R(3).
It must be said that the very simple answer to the applicant’s complaint is that no obligation pursuant to s.424(3) arose in relation to these statements attesting to the applicant’s attendance at church because there is no evidence before the Court that this was information which the Tribunal invited the applicant to give pursuant to s.424(2). From what appears in the Court Book, these statements were provided by the applicant herself to the Minister’s department and to the Tribunal.
I should note that the applicant’s complaint also seeks to argue that the Tribunal had an obligation to write to the persons who made these statements. If by making reference to s.424 this is what the applicant is seeking to argue, then the complaint is misconceived. While it is certainly open to the Tribunal to seek information, there is no compulsion to do so under s.424 (Minister for Immigration and Citizenship v SZKTI [2009] HCA 30).
The Tribunal’s finding that the applicant only engaged in this conduct in Australia for the sole purpose of strengthening the refugee claim is without error. Given the provision of s.91R(3), the Tribunal was therefore bound to disregard this conduct (Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; (2009) 259 ALR 595; [2009] HCA 40 (“SZJGV”)).
Ground Three
The third ground is as follows:
“The Tribunal has failed to give enough weight to the fact that it was the family church in China. The applicant’s religious activities the applicant attended at SYDWEST ASIAN CHRISTIAN CHRUCH that she has a genuine fear and will face persecution for a convention reason on the ground of her continued religious beliefs s91R.”
As Mr Reynolds in my view correctly submits, and with respect to the applicant, this is not happily phrased. I can only agree with the Minister’s submissions that, at best, the applicant takes issue with the Tribunal’s credibility finding in relation to events in China and that her Christian practice in Australia will lead to persecution. Without anything further, the applicant’s complaint, even taken at its best, seeks impermissible merits review from this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
Ground Four
Ground four asserts a failure to comply with obligations set out in s.424AA of the Act. Particulars to the ground assert a failure to provide unspecified but important information after the hearing to the applicant, and a failure to provide and ensure she understood independent country information.
Again I note and agree with submissions by Mr Reynolds. The ground misunderstands the nature of s.424AA. This section has been described by a Full Federal Court as a facilitative or facultative provision, available to the Tribunal as an alternative way of complying with any obligation that arises under s.424A(1) of the Act (SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46).
That is, it enables the Tribunal to put information that it considers to be the reason or part of the reason for affirming the delegate’s decision orally to an applicant that it would otherwise have put in writing. As Mr Reynolds again in my view correctly submits, failure to comply with s.424AA, as alleged by the applicant, does not of itself reveal jurisdictional error. In terms of the Tribunal’s relevant obligation, in the first instance regard must be had to s.424A(1).
Further, there is no duty to provide such information pursuant to s.424AA orally after the hearing. In that sense, given that the facility is to provide information orally, the appropriate opportunity to do that is at the hearing, not after the hearing.
Even further, beyond the reference to country information, the applicant does not say what other information should have been given to her. I note that country information, in any event, comes within the exception set out in s.424A(3)(a) from the obligation in s.424A(1). In any event, as the Minister again submits, if the applicant is making reference to country information about the availability of document fraud in China, this was put to her in writing in the Tribunal’s letter of 24 December 2009, sent pursuant to s.424A.
Ground four, therefore, does not reveal error on the part of the Tribunal.
Ground Five
Ground five asserts that the Tribunal did not take into account that the applicant practised Christianity after her arrival in Australia. It is the case that, contrary to the applicant’s assertion, the Tribunal did accept that the applicant engaged in such conduct. However, and simply, having found that she engaged in such conduct for the sole purpose of strengthening her refugee claims, the Tribunal was bound to disregard it (SZJGV). Again, no error is revealed.
Ground Six
Ground six asserts that the Tribunal made illogical or irrational findings, and therefore it failed to take into account a relevant consideration. As Mr Reynolds submits, illogical or irrational reasoning, on its own, does not reveal a failure to take into account a relevant consideration. In any event, the applicant’s complaint in this regard fails at a factual level. The applicant does not say what was irrational or illogical about the Tribunal’s reasoning. Nor can I see that its reasoning and its analysis can be described in those terms.
While the applicant plainly is aggrieved by the Tribunal’s analysis, that, on its own, does not make it irrational or illogical. At best this ground can only be seen as an expression of the applicant’s grievance with the Tribunal’s findings and its conclusion. The applicant again can only be said to be seeking impermissible merits review (Wu Shan Liang). The Tribunal’s findings, on what is before the Court, were open to it, and the findings provided a probative basis for the Tribunal’s ultimate conclusion.
Again, no error is revealed.
Ground Seven
Ground seven asserts a failure to put to the applicant, pursuant to s.424AA and s.424A, information contained in her protection visa application.
This was said to be information relating to her claim that she was a member of a “house church” in China and feared persecution in China because of this. It is the case that such information is excluded from the operation of s.424A(1), because of s.424A(3)(ba). Therefore s.424AA does not need to be engaged. I also agree with Mr Reynolds that this particular information was the very basis for the applicant’s claims. With reference to SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190, this was not information which contained in its terms a rejection or a denial of the applicant’s claims to be in need of protection.
In terms of the applicant’s understanding of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision and the relevance of the information so relied on by the Tribunal, the Tribunal’s letter sent pursuant to s.424A was unambiguous in telling the applicant the relevance of that information to the Tribunal’s decision.
Ground seven, therefore, also does not show jurisdictional error on the part of the Tribunal.
Further Consideration
I note also that the applicant could have been in no doubt, following the hearing with the Tribunal, that the Tribunal had concerns about the credibility of her claims. That is her claims as they related to events in China. It is clear that the issue that determined the review was the Tribunal’s adverse view of the applicant’s credibility of her factual account of past events in China and her fears of future harm as they were said to arise from those events. I refer to this bearing in mind the Tribunal’s procedural fairness obligations as they arise from s.425 of the Act, and as was set out by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
Paragraph 60 alone of the Tribunal’s decision record, being in that part containing the Tribunal’s account of what occurred at the hearing, is sufficient to show that the Tribunal discharged its obligation in this regard. Let alone the strong indications that the Tribunal gave throughout the hearing in relation to the applicant’s factual account. I note here in particular [28], [44], [48], [50] to [53] and [56] to [59].
I also note for the sake of completeness, and as I raised with Mr Reynolds during the course of the hearing today, the Tribunal’s approach as to how it dealt with the documentary evidence provided by the applicant in support of her claims. At [83] of its analysis the Tribunal said that it found that the applicant had been untruthful in her evidence, with particular focus in that paragraph on the role of her employer. The Tribunal found in relation to the letter of dismissal from her employer, which the applicant had presented with her application, that it was not a genuine document. The Tribunal said that it reached this conclusion having regard to its concerns about the applicant’s credibility as well as general information about the ready availability of fraudulent documents in China.
Then, at [85], the Tribunal expressed a clear finding that, having regard to the totality of its concerns, it formed the view that the applicant was not a person of credibility and that she had been untruthful in her evidence with respect to events in China. In the following paragraph the Tribunal appears then to again return to the matter of the letter from her employer. The Tribunal emphasises its total rejection of the truthfulness of the applicant’s factual account, her credibility of the factual account of what had occurred in China or what she said had occurred in China. It then, with obvious reference to Re Minister of Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, makes references to “the well has been poisoned beyond redemption.” It then says: “that it gives no weight to the corroborative evidence presented by the applicant.”
While the applicant presented a range of corroborative evidence, it is clear that most of that corroborative evidence related to events in Australia and not to events in China. The only document provided in corroboration of the events in China was the letter from the employer. While the Tribunal, with respect, could have been clearer, I am satisfied that the Tribunal’s finding that it could place no weight on the employer’s letter was as a result of its similar finding that the letter was not genuine because of its comprehensive rejection of the credibility of the applicant’s factual account of what had occurred in China, such that no corroborative document could outweigh that strong finding.
The applicant’s complaints before the Court today that the Tribunal’s decision was wrong and that she was persecuted in China do not rise above yet another request for the Court to intervene and substitute its own findings for those of the Tribunal. This Court cannot do that.
The applicant also submitted that her claims were true and that she was nervous both at the interview with the delegate and at the hearing with the Tribunal, and that this had led her to making “mistakes”. This complaint now also does not assist the applicant in showing error on the part of the Tribunal. The applicant gave the exact explanation to the Tribunal when it was pointed out to her that she had made significant mistakes both in her evidence as was given before the Tribunal and when compared with what she told the Minister’s delegate (see in particular [50] of the Tribunal’s decision record).
I should also just note that the Tribunal’s account of what occurred at the hearing remains unchallenged before the Court by any other evidence that the applicant could have brought forward. For example a transcript of the Tribunal hearing. I should also just note, in addition to [50], [59] of the Tribunal’s decision record. While the applicant may indeed have been nervous before the Tribunal, it is clear from its analysis that the Tribunal was not satisfied that this accounted for the mistakes and omissions, and ultimately the concerns that it had with her evidence. This also does not reveal error on the part of the Tribunal.
Conclusion
It is the case that for the applicant to succeed before the Court today, at the very least the Court would need to discern or find jurisdictional error on the part of the Tribunal. I cannot see such error as it is said to arise from what is set out in the applicant’s grounds, nor otherwise. The application must therefore be dismissed.
Costs
It is appropriate for an order for costs to be made in this matter. The applicant has put nothing to argue against the making of that costs order. As to the amount, having regard to all the circumstances of this case, I am satisfied that the amount sought is a reasonable amount. I will make the order in that amount.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Carr
Date: 25 August 2010
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