SZOJY v Minister for Immigration
[2010] FMCA 728
•15 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOJY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 728 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased, did not consider the applicant’s claims fairly or reasonably and reached the wrong conclusion – matter turns on its own facts. |
| Migration Act 1958, ss.91R, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Minister for Immigration & Citizenship v SZMDS (2010) 266 ALR 367 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZOJY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 995 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 15 September 2010 |
| Date of Last Submission: | 15 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 995 of 2010
| SZOJY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a member of an underground Christian church. She claims that she was caught engaging in illegal gatherings and was detained and tortured by the police.
The applicant claims to fear persecution in China because of her religion.
After her arrival in Australia on 4 March 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 6 October 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 9 of the Tribunal’s decision.
The applicant made the following claims in a statement attached to her protection visa application:
a)she was introduced to Christianity by her neighbour, a pastor, who taught her how to pray;
b)the police came to her home in April 2002 while she was having a gathering. She and others were accused of illegal gathering, detained for fifteen days and then released after paying 2000 yuan each;
c)despite this incident, she continued to practise her religion. On 24 December 2004, during another gathering at her home, the police “burst in”, beat those present and took their material. They were taken to the police station where they were forced to admit that they were gathering illegally and preaching anti-party speeches. The applicant continued to preach to the police and was tortured. She was released after she bribed some officers in the PSB; and
d)she decided to leave China for a democratic country.
The applicant was interviewed by the delegate on 30 September 2009 at which point she produced an undated statement purportedly written by a minister at the Central Baptist Church in Sydney and stating:
I have known [the applicant] … for nearly two months. She came from China. She has attended our Mandarin Sunday Morning Service for a few times. She has completed our Evangelical Bible Study courses. This morning I had a talk with her and found that she seems has a desire to know more about Christian faith.
At the Tribunal hearing the applicant produced two additional documents: an undated letter from her husband reminding her, amongst other things, to “follow the Jesus’ guidance in Australia, and keep your mind on your work to pay back the debts”; and a letter dated 22 September 2009 from the “Gao Shan Christianity Gathering Party” in Fuqing certifying that the applicant had been a member of their “Gathering Party” since February 2008.
At the Tribunal hearing the applicant also made the following claims:
a)in 2000 she became very ill. Her sister told her that Jesus Christ would protect her if she became a Christian so she did this, got better and believed;
b)she did not do anything in China to practise her religion. She then said that she listened while others preached and “went to listen each Sunday” in her home town and later said that she would go to the gathering party every two weeks, on a Sunday, if she had nothing to do;
c)after she recovered from her illness, she told people who asked how she recovered that she believed in Jesus Christ;
d)she was engaged in farming duties in China and has had little in the way of education. As such, she has only learned “a little” about Christianity;
e)she did not have a good knowledge of Christianity because her “brain is not big”;
f)she did not attend the official church in China because she was a farmer and could not do so;
g)she initially said that she had “no major problems” in China because of her religion. However, when the Tribunal indicated that her statement said otherwise, she proceeded to refer, in what appears to have been a confused way, to the events of 2002 and 2004;
h)her daughter came to Australia to study and the applicant accompanied her here in order to look after her and to make money for her tuition fees;
i)she learned about the availability of protection visas while she was in detention (in Australia) in July 2009. However, at that point she did not tell anybody about her claims because she was scared, had been arrested and thought that she should return to China;
j)her husband told her that she would be persecuted if she returned to China so after she left the detention centre she decided to apply for a protection visa. Also, she decided that she would stay in Australia to make money because her husband had borrowed funds from people in China and could not earn enough from farming to pay them back or to pay for their children’s education. She later said that the major reason that she did not want to return to China was because there was no freedom to practise her religion there; and
k)she had been to church in Australia many times.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant was not telling the truth about her claims and did not accept that she is or was a genuine Christian or that she was an underground Christian in China at any time;
b)in the Tribunal’s view, had the applicant feared harm in China as she claimed, she would have sought protection in Australia earlier than she did. In this connection the Tribunal noted that:
i)the applicant arrived in Australia in March 2008 on a visa which expired in December 2008 and yet she did not apply for protection until August 2009;
ii)the applicant’s explanation for the delay – that she only learned about protection visas in July 2009 when she was in detention, and she did not make an application until after she was released because she was scared and thought she should go back to China – was not a reasonable one because, in the Tribunal’s view, had she genuinely feared harm in her country she would not have been considering returning to China and would, at the very least, have sought protection while she was in detention;
c)the Tribunal found that the applicant’s purpose in coming to Australia had been to accompany her daughter and to earn money so that her children could continue their studies. In reaching this conclusion the Tribunal noted the following:
i)the applicant told the Tribunal that she came to Australia for her daughter and to make money for her tuition fees;
ii)she also told the Tribunal that her family owed money to people in China, that her husband could not earn enough from farming and that she had decided to stay in Australia in order to make money;
iii)when asked by Tribunal whether she had had any trouble in China because of her religion, the applicant stated that she had suffered “no major problems”. She did not readily tell the Tribunal about the 2002 and 2004 incidents until prompted which, in the Tribunal’s view, was not consistent with her claim that she left China because she feared persecution there; and
iv)her claim to fear persecution in China was not consistent with the evidence she gave at the hearing that, while she was in detention, she considered returning;
d)when asked by the Tribunal what she knew about her religion and how she practised it, the applicant gave general and limited answers and agreed that she did not have a good knowledge of Christianity. In the Tribunal’s view, if the applicant were a genuine Christian she would have been able to say more about her religion and what she did to practise it, particularly given her claims that she had been a Christian since 2000 and had been prepared to leave her country to practise her faith freely;
e)having not accepted that the applicant had been telling the truth about her claims, the Tribunal did not accept that the letter from her husband or the document from the Gao Shan Christianity Gathering Party were reliable evidence of the facts they asserted; and
f)the Tribunal accepted that the applicant had attended a Christian church and Christian activities in Australia but, having regard to all the evidence before it, found that she had engaged in such activity in order to strengthen her claim to be a refugee and to better her chance of remaining in Australia permanently. The Tribunal therefore disregarded this conduct pursuant to s.91R(3) of the Act.
Proceedings in this Court
The grounds of the application were pleaded as follows:
1.Department of Immigration has bias against me and didn’t make fair decision for my protection visa application.
2.Refugee Review Tribunal didn’t consider my application fairly. The Tribunal refused my application on 31 March.
3.I believe that my application was not considered reasonably by the Department of Immigration and the Tribunal.
Bias
The first ground of the application alleges that the Minister’s department was biased and did not make a fair decision. The Court has no jurisdiction to review the delegate’s decision and I will take this allegation to be one in relation to the Tribunal.
It appears to be an allegation of actual bias. The lack of clarity in this respect reflects the fact that the allegation is not distinctly made as it should be. Moreover, the applicant has not pointed to any matters which would demonstrate that the Tribunal was so committed to a conclusion already formed that its view was incapable of alteration whatever evidence or arguments might have been presented.
Allegations of bias must be not only distinctly made but also clearly proved. The applicant has not advanced any evidence which would justify a finding of bias. Further, a consideration of the Tribunal’s decision does not support a conclusion that it entered into its review having prejudged the matter or that it sought to achieve a particular outcome. The Tribunal permitted the applicant to make her case by putting before it the evidence and arguments she wished it to have. The Tribunal’s querying of that evidence and those arguments does not, in the circumstances of this matter, indicate anything more than unexceptionable inquiries into the circumstances alleged by the applicant and a reasonable testing of the applicant’s claims. Further, the queries and doubts which the Tribunal expressed to the applicant during the course of its hearing only represented the Tribunal discharging its obligations under s.425 to put her on notice of issues arising in relation to the decision under review. Such conduct does not, in the circumstances of this case, point to a closed mind on the Tribunal’s part.
Failure to consider application fairly
The second allegation of the application, that the Tribunal did not consider the applicant’s application fairly, is not particularised and so it is not completely clear what the applicant means by it. However, to the extent that the allegation suggests that there was some lack of good faith on the part of the Tribunal in its consideration and determination of the review, it must be rejected. The relevant principles are set out in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 755-756 and I am satisfied that none of the circumstances described there apply in this case but that, rather, the Tribunal undertook a conscientious review.
Alternatively, it may be that the applicant alleges that the decision was not fair in the sense that the Tribunal should have reached a different conclusion, which was the burden of part of her submissions today. If so, it should be stated that the decision which the Tribunal reached was one which was logically open to it on the evidence and that in such circumstances a challenge to the decision on this basis cannot succeed.
A further potential interpretation of the second allegation is that the applicant was denied procedural fairness. The Tribunal’s procedural fairness obligations are codified in div.4 of pt.7 of the Act. The applicant has not pointed to any provision contained in that division which she asserts was breached or not observed by the Tribunal and it is not apparent that any was. In particular, the Tribunal had no obligations under s.424A and, having invited the applicant to a hearing which she attended and at that hearing having put to her matters arising in relation to the decision under review, it discharged its obligations under s.425.
For these reasons, the second allegation of the application is not made out.
Failure to consider application reasonably
The third allegation in the application is that the Minister’s department and the Tribunal did not consider the applicant’s application reasonably. Again, it needs to be said that the Court has no jurisdiction to review the department’s decision on the application. It may only review the Tribunal’s.
Turning to the allegation against the Tribunal, the assertion that the claim was “not considered reasonably” appears to be an allegation that the decision was unreasonable. However, a Tribunal’s decision will not be set aside on that basis if it was open to the Tribunal to engage in the process of reasoning in which it did engage and if it was open to make the findings which it did make on the material before it:
While there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. (Minister for Immigration & Citizenship v SZMDS (2010) 266 ALR 367 at 397 [135] per Crennan and Bell JJ)
Their Honours’ statement concerning illogicality and irrationality is to be understood in the context of what their Honours said earlier in SZMDS:
In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. (at 396 [130])
In this case, as stated earlier in these reasons, the Tribunal’s decision was logically open to it on the evidence before it. The fact that a differently constituted Tribunal might have reached a different decision does not mean that the decision under review was relevantly unreasonable.
The decision was primarily based on an assessment of the applicant’s credit, a matter par excellence for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. One particular element of that assessment concerned the applicant’s claim to be a Christian. In this connection, it should be noted that the Tribunal did not apply any particular standard of religious knowledge but concluded, given the alleged longevity of the applicant’s faith, that she would have been able to tell it more about her faith and what she did to practise it than in fact she did. Such an approach does not manifest error.
For these reasons, the third ground alleged in the application is not made out.
Tribunal reached wrong conclusion
In her submissions today, the applicant complained that, notwithstanding the fact that she had told the truth to the Tribunal, she was not believed. In essence, her submission was that the Tribunal reached an incorrect conclusion as to her credibility and thus an incorrect decision on her review application. However, as has already been stated, findings of credibility are matters especially reserved for the decision of the Tribunal. They are findings of fact in relation to which this Court cannot inquire absent unreasonableness in the sense discussed in SZMDS. For that reason, the submissions in this regard made by the applicant today do not disclose a basis upon which the Tribunal’s decision should be set aside.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 23 September 2010
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