SZOIW v Minister for Immigration
[2010] FMCA 568
•2 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIW v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 568 |
| MIGRATION – Review of RRT decision – applicant claimed protection on the ground of religion – where applicant named cousin as a witness to his attendance at Church in Australia and that cousin subsequently questioned about his knowledge of bible stories – where Tribunal did not recognise a paraphrased version of a story from the Bible and used the witness’ perceived failure to recount his favourite bible story as a basis to refuse to hear from further Church attendees – whether Tribunal exceeded its jurisdiction by taking on the role of arbiter of religious doctrine – s.91R(3) – whether Tribunal wrongfully disregarded applicant’s conduct in Australia – where Tribunal at no stage determined to grant the visa – whether reasonable apprehension of bias demonstrated by decision not to call further witnesses. |
| Migration Act 1958 (Cth), ss.91R(3), 424, 426(3) |
| Wangv Minister for Immigration [2000] FCA 1599 Mashayekhi v Minister for Immigration [2000] FCA 321 WALT v Minister for Immigration [2007] FCAFC 2 Minister for Immigration v SZJGV [2009] HCA 40 SZJBD v Minister for Immigration [2009] FCAFC 106 Minister for Immigration v SZNPG [2010] FCAFC 51 |
| Applicant: | SZOIW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 722 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 July 2010 |
| Date of Last Submission: | 22 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 12 March 2010.
A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.
First Respondent to pay the Applicant’s costs assessed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 722 of 2010
| SZOIW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia on 7 April 2007 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 13 July 2009. A delegate of the Minister refused to grant a protection visa on 7 October 2009 and on 11 November 2009 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant appeared before the Tribunal at a hearing on 19 January 2010. On 4 February 2010 the Tribunal wrote to the applicant, through his migration agent, providing him pursuant to s.424A of the Migration Act 1958 (the “Act”) with particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision that was under review. On 1 March 2010 the agent responded by letter. On 12 March 2010 the Tribunal determined to affirm the decision not to grant the protection visa and handed that decision down on the same day.
The applicant’s Convention reason for claiming that he was a person to whom Australia owed protection obligations was that of religion. In his PVA he told that he had grown up in a Catholic family and that when he was a child his father often took a group of church members home for discussion and bible readings. When he was in junior high school the local government warned his parents not to organise underground church activities but they ignored this warning. In June or July 2006 there was a gathering of his family and other church members at his home. Several policemen in uniform broke into the house and assaulted the church members and damaged the house. He and his brother ran out of the house but saw his parents and other church members taken into police custody. They were later released with the assistance of a relative who had connections in the police force. The applicant claimed that he was discriminated against at school because of his Christian beliefs so his parents decided to send him to Australia. He obtained a passport and a student visa. He was not successful as a student and withdrew from the course because it was too difficult and he could not afford the tuition fee. He told that he worshipped at a Catholic church in Flemington.
At the Tribunal hearing the applicant stated that he went to Church every Sunday in China, he also attended religious night lessons most nights of the week in China. These were conducted in the homes of other Catholics in his area including his family home. He attended lessons almost every day during the school holidays and approximately three or four times a week in the school term time. He told the Tribunal about the churches that he attended of which there were two and gave a description to the Tribunal of the services that were conducted there. The applicant claimed that he would go and see people who were sick and talk to them about Jesus Christ and help to give them encouragement.
The Tribunal questioned the applicant about his baptism certificate. He obtained one from 2009 although he said that he had been baptised in China shortly after his birth. He said there were no baptism certificates in China at that time. He told the Tribunal that he obtained one because his friend had one and so he asked his parents whether he could have too. He later told the Tribunal that he asked for one because he wanted to be able to show people that he was a Catholic. The applicant was unable to produce the document to the Tribunal, he told that he had forgotten to bring it with him. The Tribunal considered that this was an important document.
The Tribunal asked the applicant about the difference between the state sanctioned Catholic Church and the home churches and considered that he was unable to provide any details of the difference. The Tribunal asked the applicant about the arrest of his parents. He provided some inconsistent evidence about this indicating that although he had said in his PVA that both parents were arrested, in fact only his father was. The applicant also told of another incident in 2006 when he was attending a church service which was interrupted by the police. Ten police officers came in and the police arrested those people conducting the service and the owner of the building because the religion was not lawful. The Tribunal noted that this incident had not been mentioned to the Department. The applicant said this was because of his loss of memory.
The Tribunal asked the applicant about his activities in Australia. He said that he attended a church service shortly after his arrival at Easter and in regard to the attendance at Church in Flemington the Tribunal asked the applicant some details about this. He provided the name of the priest but indicated that he did not think he would be known to him. He said that he attended that Church every week until around July or August 2008 but he stopped going because he ran out of money and because he attended with a friend of his fathers with whom he had fallen out. The Tribunal asked the applicant whether he could provide the names and telephone numbers of other members of the Flemington Church who could verify his attendance. The applicant gave the Tribunal the names and telephone numbers of four people, one of whom was his cousin. The Tribunal determined to telephone one of the people who the applicant had named, a Mr “CB”. Mr B had told the Tribunal that he had known the applicant for approximately two years and that they had studied together, that the applicant’s religion was Catholic whereas he was a Christian. He said that he had not attended a church service with the applicant. He told that when the applicant was in Sydney he often went to a church in Lidcombe although the witness did not know the name of the church. He appeared to know that the applicant had stopped going to Church before he went to Western Australia in around 2008.
The Tribunal then telephoned Mr “ZG” who was the applicant’s cousin:
“[64]Mr G stated that he was the cousin of the applicant and they were both Catholics from birth. The Tribunal asked whether he had ever attended Catholic church services with the applicant in Australia. He stated that they regularly attended services at the Flemington church each Sunday which were conducted at 11.30a.m. The Tribunal asked the name of the Priest at that church and he stated that it was Father Marr. The Tribunal asked whether he still attended the church in Flemington and he stated that he did. The Tribunal asked whether Father Marr knew him and he stated that he did not because he did not talk to Father Marr personally. The Tribunal asked where the church in Flemington was located and he stated that it was just near the railway station.
[65]The Tribunal asked Mr G to state his favourite story from the Bible. He was initially unable to respond. After some delay, he then stated that his favourite story was when Jesus Christ was aged 12 he went back to his home town. While his parents were looking for him, he went to the church and they finally found him and the people on the church said the he spoke very well.
[66]The Tribunal asked Mr G to explain the story of how Jesus Christ was born. He stated that they were going back to home but they had no place to stay so they stayed in a stable and that night Maria gave birth to Jesus Christ and an angel and a shepherd were around.” [CB 105 – 106]
The s.424A letter, which is reproduced at [68] [CB 106-108], makes reference to the telephone call with Mr CB and the fact that Mr CB had said that the applicant had attended Church in Lidcombe whereas the applicant said the he had attended Church in Flemington and then made reference to the conversation with Mr G. The Tribunal referred to both of the bible stories that Mr G had recited to the Tribunal. In respect of the first it said:
“The Tribunal is not familiar with this as a genuine story from the Bible.”
In respect of the second it said:
“While Mr G’s account contains some of the key aspects of the biblical story regarding Jesus’ birth his account appeared to the Tribunal to be very vague for someone who claims to have been a practising Catholic since birth and who attends church every Sunday.”
The Tribunal continued:
“The information contained in paragraphs 4 and 5 is relevant to the review as it may lead the Tribunal to question whether Mr G is a genuine Catholic. This may lead the Tribunal to place little or no weight on Mr G’s evidence. It may also lead the Tribunal to question whether his evidence was fabricated for the purposes of assisting your application. This may lead the Tribunal to question your credibility and whether your refugee claims are genuine. This may be the reason or part of the reason for affirming the decision under review.”
The applicant responded to the s.424A letter and in regard to the paragraphs extracted above said:
“Mr Applicant asked the Tribunal to consider the evidence given by Mr G who is also a Catholic. During the hearing the applicant also gave the Tribunal the contact number for Mr KW. Mr W is also a Catholic and is aware of Mr Applicant’s religious practice in Australia.” [CB 108]
The Tribunal dealt with this evidence at [77] [CB 110]:
“The Tribunal has considered the oral evidence via telephone of Mr CB and Mr ZG who stated that the applicant is Catholic. However, for the reasons discussed below, the Tribunal has given their evidence little weight.”
The evidence of these two witnesses is dealt with at [90] and [91] of the Tribunal’s decision record. It indicated that it would place very little weight on the evidence of Mr CB because Mr B was not himself a Catholic and never attended Church with the applicant. The Tribunal considered that Mr B’s understanding that the applicant was a Catholic was based simply on what the applicant had told him and that he had lacked insight into the applicant’s religious experiences in China. With regard to Mr G the Tribunal said:
“[91]In relation to Mr G, the Tribunal accepts that he may have attended the church in Flemington with the applicant on a number of occasions given that he displayed some familiarity with the church. However, for the following reasons the Tribunal did not accept his claims of being Catholic. He was vague and evasive when asked to describe his favourite story from the Bible. When he eventually did respond, he described a story which the Tribunal does not accept as being a true story from the Bible. When asked about the story of Jesus Christ’s birth, he provided an account which was very vague for someone who claims to have been a practising Catholic since birth and who attends church every Sunday. When these matters were put to the applicant under the Tribunal’s s424A letter, he simply reiterated that Mr G is Catholic and asked the Tribunal to consider his evidence. The Tribunal has considered Mr G’s evidence but does not accept that Mr G is Catholic. Given this finding, combined with the Tribunal’s other credibility concerns with the applicant, the Tribunal places little weight on Mr G’s evidence that the applicant is also Catholic, or that he and/or the applicant attended the Catholic church in Flemington as genuine Catholic practitioners.”
The Tribunal continued at [92] [CB 113]:
“[92]The applicant provided the telephone numbers of two other persons whom he claimed could verify his attendance at the Flemington church. The Tribunal accepts that the other two people named by the applicant would have given evidence that the applicant has attended services at the Catholic church in Flemington. However, given the Tribunal’s other credibility concerns with the applicant and the little weight given by the Tribunal to the evidence of Mr B or Mr G, the Tribunal did not consider that contacting the other two persons named by the applicant in his evidence as person who could verify his attendance at the Flemington church would have yielded a useful result or would have persuaded the Tribunal that the applicant was Catholic or that he attended the Flemington church as a genuine Catholic practitioner.
[93]Noting again the Tribunal’s findings above that the applicant lacks any true believe in Catholicism or any history of membership of the underground Catholic church in China, the Tribunal does not accept that he attended church services in Australia due to being a genuine Catholic. The Tribunal is not satisfied that the applicant attended the Flemington church otherwise than for the whole purpose of strengthening his claim to be refugee and the Tribunal has therefore disregarded that conduct pursuant to s 91R(3) of the Act.”
On 22 July 2010 the applicant filed an Amended Application. This contained three grounds. The first ground is:
“The Tribunal gave the testimony of the applicant’s cousin, who corroborated the applicant’s evidence of attendance at church, little weight. This was principally because the Tribunal did not accept the cousin’s evidence concerning his favourite bible story as the Tribunal did not accept that it was a true story from the Bible. The Cousin’s evidence was “when Jesus was aged 12 he went back to his home town. While his parents were looking for him, he went to the Church and they finally found him and the people in the Church said that he spoke very well.” This evidence is wholly consistent with Luke 2:41-47
Every year his parents went to Jerusalem for the Feast of the Passover. 42When he was twelve years old, they went up to the Feast, according to the custom. 43After the Feast was over, while his parents were returning home, the boy Jesus stayed behind in Jerusalem, but they were unaware of it. 44Thinking he was in their company, they travelled on for a day. Then they began looking for him among their relatives and friends. 45When they did not find him, they went back to Jerusalem to look for him. 46After three days they found him in the temple courts, sitting among the teachers, listening to them and asking them questions. 47Everyone who heard him was amazed at his understanding and his answers.
The Tribunal exceeded its jurisdiction by taking upon itself the role of arbiter of minimum religious knowledge to be a Catholic. Further, in these circumstances the Tribunal did not have a proper basis for its decision to accord little weight to the corroborating evidence of the cousin. Had the Tribunal properly assessed the cousin’s evidence it may have accepted its corroborating support for the applicant’s evidence and the outcome may have been affected. Accordingly the Tribunal did not complete the exercise of its jurisdiction.”
In Wang v Minister for Immigration [2000] FCA 1599 (“Wang”) a Full Bench of the Federal Court Wilcox, Gray and Merkel JJ considered an appeal where the Tribunal had sought to question the applicant upon his religious beliefs. Gray J said:
“[16]I have some doubt as to the correctness of the approach of the RRT to this finding of fact. The RRT receives many applications from persons who seek protection visas, claiming well-founded fear of being persecuted by reason of religion. It is inconceivable that every member of the RRT is properly equipped to assess each such applicant on the basis of the applicant's knowledge of the faith that he or she professes. Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion. Nevertheless, what the RRT said in the present case amounts to a finding that the appellant has a conscientious belief ("his faith"), is a professed adherent of a recognised body of religion ("the Protestant Church") and has engaged ("as a member of an unregistered congregation") and continues to engage ("as a member of the Chinese Presbyterian Church") in the practice of his religion.”
In Mashayekhi v Minister for Immigration & Multicultural Affairs[2000] FCA 321 Merkel J had noted at [16]:
“If the RRT is to fairly and justly discharge its important functions under the Act, it is critical that it:
*be sensitive to the cultural, social and religious difference that exists in so many of the societies with which its cases are concerned;
*does not arrive at or state its findings of fact on such issues with greater confidence than the circumstances of the particular case may warrant.”
In WALT v Minister for Immigration [2007] FCAFC 2 another Full Bench Mansfield, Jacobsen and Siopis JJ stated at [16]:
“The appellant first contended that the Tribunal had committed jurisdictional error because it had failed to ask the correct question in relation to the appellant’s claim to have converted to Christianity. He argued that the Tribunal wrongly took into account the perceived deficiencies in his knowledge as a Christian after his "conversion" when considering whether he had converted to Christianity at that age. He also contended that the Tribunal had wrongly filtered his claim through its own views of what were appropriate understandings and beliefs for a Christian to have. Reliance was placed upon the observations of Gray J in Wang v Minister for Immigration and Multicultural Affairs[2000] FCA 1599; (2000) 105 FCR 548 at 557, [16] (Wang).”
and then considered this ground at [27]. At [28] it indicated approval of Gray J’s views expressed in Wang:
“In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion, a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.”
At [30] their Honours indicated that the Tribunal should approach these issues in the manner suggested by Merkel J in Mashayekhi.
The applicant in the instant case argues that the Tribunal in its questioning of the applicant’s cousin went further than merely testing the commitment he espoused, it set up a standard. That standard being his ability to provide details of two biblical stories to the satisfaction of the Tribunal. When he was unable to do that the Tribunal determined to give little weight to his evidence, but more importantly, made a finding that Mr G was not a Catholic and because of the lack of weight that the Tribunal decided to give to Mr G’s evidence it would not contact the other two persons named by the applicant. The Tribunal did this because it was not satisfied that any evidence from those people would yield a useful result given the lack of useful results from Mr B and Mr G. The respondent argues that the Tribunal was merely testing Mr G’s knowledge and if it made a mistake about that this was a mistake made within jurisdiction. It also argues that the applicant had an opportunity in his response to the s.424A letter to set the Tribunal right which he did not do.
I think that the actions of the Tribunal did amount to setting a standard which the witness was required to achieve in order for his evidence to be of any benefit and I also have concerns that the Tribunal did not take fully into account the cultural, social and religious difference that might exist in China. I do not accept the respondent’s argument that the applicant’s recitation of the story that appears in Luke was vague or inaccurate. It seems to me to be a very reasonable paraphrase. I take a similar view to the story of Christ’s birth. The Tribunal set itself up as an arbiter of religious knowledge so far as the witness was concerned because it used the failure to come up to its standards as reason to reject other evidence that it had not even heard. In saying this I am conscious of the fact that the Tribunal is not required to take evidence even where an applicant nominates particular witnesses (s.426(3)). The reason given for not calling these witnesses was directly related to the Tribunal’s views about Mr G which were arrived at in a manner which was found to be in error. The seriousness of this conduct for the applicant’s claims was significant.
The second ground of application was:
“The Tribunal wrongfully disregarded the applicant’s conduct in participating in Church activities in Australia in reliance upon s 91R(3) of the Act as that section had no application to that conduct because the Tribunal was not engaged in a chain of reasoning leading to a determination in favour of the applicant which was based in whole or in part on inferences drawn from that conduct.”
The applicant argues that the proper approach to the application of s.91R(3) consistent with the views expressed by the High Court in Minister for Immigration v SZJGV [2009] HCA 40 is what he describes as a three step approach. First, the Tribunal must consider whether it is going to grant a protection visa taking into account any evidence given in relation to an applicant’s activities in Australia. He argues that this step is consistent with the views expressed by the High Court at [12] where French CJ and Bell J said:
“However, the Solicitor-General's submission does lead to consideration of an alternative construction, which is to read "whether" as "that": not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term "whether" in par (a). But such misuse is not entirely without precedent[16]. In this case, the substituted text corrects what would be an obvious drafting error were "whether" to be construed according to its ordinary and natural meaning. On the alternative construction, par (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in par (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction.”
The second step, if the Tribunal considers that it would grant a visa based upon all the evidence, is to consider the motivation of the applicant and the third step, if the Tribunal is satisfied that the motivation was otherwise than for the purposes of enhancing the applicant’s claim is to grant the visa. If, on the other hand it is not so satisfied, then evidence of what occurred in Australia must be excluded and the Tribunal should consider again whether or not it is to grant a visa. This interpretation of the s.91R(3) requirement, which I endorse, does not prevent the use of evidence concerning the applicant’s activities whilst in Australia that would not strengthen the claims and thus be consistent with the views expressed by Crennan and Kiefel JJ at [54] and [64]. It should be noted that if this is the correct approach then it would be necessary for a Tribunal on some occasions to make an additional determination. That is because the nature of what occurs in Australia may give ground for a sur place claim. This should also be considered at step 1 and should take into account the evidence of that activity in Australia for that purpose.
Having indicated the manner in which I believe s.91R(3) should be interpreted I should also indicate that I cannot be satisfied that the Tribunal did not approach the matter in that way. I do not think that the applicant was putting forward his activity in Australia as a sur place claim. He was using it for the purposes of indicating his commitment to Christianity. The Tribunal determined that his evidence about what occurred in China which caused him to have his alleged well founded fear was not credible. It also came to the conclusion that whatever activity he had undertaken in Australia did not belie that impression. The applicant would have failed at the first step because he would not have been granted a visa taking into account all the matters required to be considered including his activities in Australia. If I cannot be satisfied that the Tribunal did not consider the matter in the manner in which I believe s.91R(3) is to be construed then no jurisdictional error can be found.
The third ground was:
“There is a reasonable apprehension that the Tribunal was biased.
Particulars
The applicant gave the Tribunal the name and number of four persons who could corroborate his evidence. The Tribunal rang two of them. The Tribunal declined to ring the other two as, given its assessment of the applicant’s credibility, it did not consider that contacting the witnesses would yield a useful result or would have persuaded the Tribunal that the applicant was Catholic or that he had attended the Flemington Church as a genuine Catholic. In so reasoning the Tribunal displayed a closed mind incapable of persuasion.”
The applicant argues that the Tribunal’s display of the closed mind is evident from its own decision record at [92] [CB 113] extracted at [11] of these reasons. The applicant argues that because this occurred before the applicant had been given the opportunity to respond to a s.424A letter which raised concerns about matters that reflected on his credibility and if there was nothing that the two witnesses could say to change the Tribunal’s view that the applicant was not a Catholic then there is a clear apprehension that there was nothing that the applicant could say in his response to the s.424A invitation which could change the Tribunal’s mind on the issue of credit. He argues that it was clear that the Tribunal had closed its mind and was determined that the applicant was not a Catholic and he therefore fabricated his claims prior to the issue of the s.424A invitation to the applicant. It was not open to persuasion to the contrary.
I am afraid that I cannot make the leap from the Tribunal’s decision about the two witnesses to a finding that the Tribunal had a closed mind on the credibility of the applicant. I think that the Tribunal may have thought that the two additional witnesses could not assist in illuminating the applicant’s genuine adherence to Catholicism but that does not mean that the Tribunal could not have been persuaded by something in the response to the s.424A letter. Apprehended bias requires an extreme case SZJBD v Minister for Immigration [2009] FCAFC 106 at [81] and it is a rare case where the apprehended bias can be established from the Tribunal’s reasons alone; Minister for Immigration v SZNPG [2010] FCAFC 51.
I have found that the Tribunal fell into jurisdictional error in the manner in which it dealt with the questioning of the witness Mr G. I will make orders providing for the constitutional writs sought. I order that the First Respondent pay the Applicant’s costs which I assess in the sum of $5,800.00.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 2 August 2010
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