SZOKE v Minister for Immigration

[2010] FMCA 615

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOKE v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 615

MIGRATION – Refugee Review Tribunal – no failure to give appropriate consideration to explanations – applicant seeking impermissible merits review – no failure to consider a claim – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 422B, 424A, 424AA, 425, 425A, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg. 4.35D

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
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
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46

Applicant: SZOKE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1036 of 2010

Judgment of: Nicholls FM

Hearing date: 15 July 2010

Date of Last Submission: 15 July 2010

Delivered at: Sydney

Delivered on: 15 July 2010

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Mr R White

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 11 May 2010 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1036 of 2010

SZOKE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made on 11 May 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”) which seeks review of the decision made by the Refugee Review Tribunal (“the Tribunal”) on 12 April 2010, which in turn affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The Minister’s representatives have put a bundle of relevant documents before the Court (“Court Book” – “CB”).

2. The applicant before the Court today is a citizen of the People’s Republic of China (“China”) (CB 13). She arrived in Australia on 12 September 2007 (CB 14). She held a student guardian visa in conjunction with her son who came to Australia as a student (CB 14, CB 20). She applied for a protection visa nearly two years later on 10 August 2009 (CB 1 to CB 32). In that she was assisted by a registered migration agent (CB 33 to CB 36).

Claims to Protection

1. The applicant’s claims to protection were that she feared persecutory harm on essentially two bases. The first was said to be mistreatment and oppression because of what is described as China’s one-child policy. The applicant had four children and claimed her family had been fined, and that none of the repayments made in relation to the fine had been registered by the authorities. She claimed that her fourth child had been denied household registration. She claimed further that she would suffer mistreatment by being denied employment.

2. The second basis for her application was that the applicant claimed to have been a Christian since she was a child and was a member of an underground Christian church in China. She feared that she would be detained and persecuted by the authorities if they became aware of her religious practice. She subsequently claimed to have also attended church in Australia.

The Delegate

1. The Minister’s delegate refused the application on 27 November 2009. He accepted that the applicant had four children but found that the relevant law relating to the one-child policy, which included the fine imposed on the applicant, was a law of general application and that in the circumstances the application of this law to the applicant was not therefore Convention-related persecution (CB 72).

2. The applicant had been interviewed by the delegate. He noted that she had said that once she married she was not allowed to go to church and did not have time to attend. Further that following her arrival in Australia, she had only attended church two or three times (CB 72). On this basis, the Minister’s delegate concluded that her commitment to the Christian faith was not of an order that would bring her to the adverse attention of the Chinese authorities.

3. The delegate ultimately found that the essential and significant reason the applicant feared a return to China was because of the debts that she owed and the financial consequence as a result (CB 73). The delegate also relied on the delay in making the protection visa application to find that she did not have a genuine fear of persecutory harm if she were to return to China (CB 73).

The Tribunal

1. The applicant sought review by the Tribunal on 4 January 2010 (CB 75 to CB 78). She continued to be represented by the same migration agent (CB 76).

2. By letter dated 21 January 2010 the Tribunal invited the applicant to comment or respond to information that it said would be the reason or part of the reason for affirming the decision which was under review (CB 82 to CB 83). That information was contained in Immigration Department records and related to the time of the grant of the student guardian visa to her, the date of her arrival in Australia and then the date of the protection visa application nearly two years later. Such delays were explained or said to indicate that she did not have a well-founded fear of persecution for a Refugees Convention reason.

3. The applicant, through her agent, responded by letter dated 16 February 2010 (CB 88).

4. By a second letter, also dated 21 January 2010, the applicant was invited to a hearing before the Tribunal (CB 85). She attended on 16 March 2010 (CB 89). The Tribunal’s account of what occurred is set out in its decision record (in particular I note from [36] at CB 108 to [94] at CB 115).

5. Following the hearing, by letter dated 31 March 2010 the applicant made what was described as a “post-hearing submission” (CB 96).

6. The Tribunal accepted that the applicant had four children and that she was in significant debt. However, the Tribunal also found that her material claims for protection lacked credibility and therefore could not be accepted ([105] at CB 118). This arose from a range of findings made in relation to the applicant’s factual account underpinning her claim to fear persecutory harm. The Tribunal also relied on the delay in applying for protection, the lack of evidence to support some aspects of her claims in circumstances where evidence would have been expected, and significant inconsistencies in her evidence.

7. Further, that her lack of knowledge of Christianity was not commensurate with someone who claimed to have been a Christian since birth or since being a child ([112] at CB 120).

8. Based on these comprehensive findings as to a lack of credibility, the Tribunal concluded that the applicant was not a credible witness, and further that she had embellished her claims ([114] at CB 120).

9. In particular, I note also as a consequence that the Tribunal rejected the factual basis that a debt for the birth of her fourth child remained outstanding. It therefore also rejected the factual and consequential and subsequent claims made in this regard ([114] – [115] at CB 120).

10. Further, the Tribunal did not accept that the applicant was a Christian in China or was a member of an underground church, or attended secret gatherings as she had claimed ([116] at CB 120).

11. The Tribunal accepted that the applicant had attended church in Australia but, given its other comprehensive findings, it was not satisfied that this was done other than for the purpose of strengthening her refugee claims. In consequence of this finding, the Tribunal was compelled by s.91R(3) of the Act to disregard this conduct in Australia for the purposes of the review ([117] at CB 120 to CB 121).

Application to the Court

1. There are two grounds of the application to the Court:

   “1) The applicant claims that the Tribunal’s decision was affected by judicial error in failing to accept the applicant’s claims about being mistreated by the Chinese Government due to her family’s breach of one-child policy. The Tribunal did not give sufficient consideration to the applicant’s explanation about her fourth child’s household registration.

   2) The Tribunal failed to consider the applicant’s claims that she had attended church practice in Australia. The Tribunal incorrectly applied S91R(3) in refusing to consider her religious practice in Australia.”

Before the Court

1. The applicant appeared in person before the Court today. She was assisted by an interpreter in the Fuqing language. Mr R White appeared for the first respondent. Written submissions have been provided by the Minister. The applicant has provided no further documentation to the Court.

2. Before the Court the applicant complained that the Tribunal did not believe her even though that she had told the truth that indeed she was a Christian, and emphasised that she had attended church in Australia. The Court attempted to explain to the applicant that, on its own, such a complaint does not reveal legal error on the part of the Tribunal, such error being a prerequisite to the applicant being successful before the Court. In one sense understandably, the applicant continued not to understand or accept this explanation.

Consideration

1. Ground one complains that the Tribunal did not give sufficient consideration to her explanation about her fourth child’s household registration.

2. This matter was discussed at the hearing with the Tribunal ([80] at CB 113). In saying that, I rely on the only evidence that has been put before the Court of what occurred at the Tribunal hearing. That is the Tribunal’s own account. Despite opportunity provided to her at the first Court date in this matter, the applicant has not put on any evidence, for example by way of transcript, to challenge what the Tribunal said had occurred at the hearing. In these circumstances, it is certainly not open to this Court to draw any inference as to what may be said to have otherwise have happened (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

3. The applicant was asked to comment or respond to the Tribunal’s concerns in relation to this matter of the household registration concerning her fourth child ([80] at CB 113). The applicant’s response is set out at [81] (CB 113). It is important to note that on this, as indeed with a number of other matters, the Tribunal repeatedly asked the applicant if she wanted more time to respond, and indeed, as ultimately set out at [90], the Tribunal gave the applicant a further two weeks exactly for that purpose.

4. The specific matter of the household registration was addressed by the applicant’s agent in the post-hearing submissions (CB 96). The Tribunal’s relevant consideration is set out at [108] and [109] of its decision record. Any plain reading of this reveals that the Tribunal did give appropriate consideration to this matter. The applicant’s assertion now that the Tribunal did not give sufficient consideration can only in the circumstances really be seen as a complaint that the Tribunal did not accept her explanation, and a complaint further that the Tribunal unacceptably used this matter as one of many factors to find adversely to the applicant’s credit.

5. I say for the applicant’s benefit in particular that the Tribunal is not required to uncritically accept what an applicant says (Randhawa v the Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J). In fact the Tribunal does not have to accept anything that an applicant says. The Tribunal is required to consider every claim made by an applicant in each aspect of a claim, and the Tribunal is then jurisdictionally required to make findings of fact in relation to these claims. But such findings of fact, including findings on credibility, are for the Tribunal to make. So long as it is open to the Tribunal to make such findings, then such an exercise comes within its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J).

6. In all the circumstances, ground one can only be seen as a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259). Indeed this seems to underpin and reflect the applicant’s misunderstanding in coming to the Court today. With respect to the applicant, it was clear, with her repeated insistence that she had told the truth and always tells the truth, that she fundamentally misunderstood the nature of the proceedings before the Court today. Despite my attempt at explanation she continued to misunderstand the role and the power of this Court. Whether or not the applicant always tells the truth is not relevant to the disposition of the critical and central question that this Court is required to address and answer today. That is, whether there was jurisdictional error in the way the Tribunal went about conducting the review and in the decision that it made.

7. As I sought to explain to the applicant, if all that she could say was to maintain an assertion that she told the truth to the Tribunal, then on its own and in face of the evidence before the Court, that is insufficient to show that the Tribunal fell into jurisdictional error.

8. Ground two asserts that the Tribunal failed to consider the applicant’s claim that she attended church in Australia and incorrectly applied s.91R(3) to her religious practice in Australia.

9. This again was something pressed by the applicant today. This ground must fail.

10. First, the Tribunal did not fail to consider this claim, contrary to the assertion made in ground two. In fact it is quite clear, with reference to [117] (CB 120), that the Tribunal in fact accepted that the applicant had attended church services in Australia.

11. Second, the circumstances of the Tribunal’s disregard of this conduct because of s.91R(3), when viewed in light of what was relevantly said by the High Court in 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, does not reveal jurisdictional error.

12. The Tribunal’s lack of satisfaction that her conduct in Australia was other than for the purpose of strengthening her refugee claims was a finding of fact reasonably open to it and explained for the reasons that it gave. Clearly the Tribunal’s comprehensive rejection of the credibility of the applicant’s claims as to what had relevantly occurred in China left it in a position where it was not able to be satisfied that her conduct in Australia was other than for that purpose.

13. Although not raised by the applicant, I did consider whether any other matter could reveal jurisdictional error on the part of the Tribunal. In terms of procedural fairness, of course, this is a matter to which s.422B of the Act applies, therefore making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, of course absent bias.

14. In this case, looking at the matters relevant in that division, the applicant was invited to a hearing pursuant to s.425 of the Act. I note that, on the evidence before the Court, the Tribunal’s invitation complied with all relevant statutory and regulatory requirements. The Tribunal complied with sections dealing with periods of notice and of the mode of sending the letter (s.425A, s.441A, s.441C and reg.4.35D). The letter advised the applicant as to the consequences of her non-attendance and s.426A. Ultimately, as I said earlier, on the only account of what occurred at the hearing before the Court, it is clear that the Tribunal discussed with the applicant her entire factual account.

15. Bearing in mind what the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63, there can be no doubt that the Tribunal more than “sufficiently indicated” to the applicant its concerns with the critical aspects of her factual account such that the applicant was squarely put on notice (for example at [63]) that the Tribunal could come to the conclusion that she was not telling the truth in regard to being a Christian. Similarly, with the Tribunal’s rejection of the applicant’s claims in relation to the claimed outstanding debt arising from the matter of the one-child policy.

16. In terms of s.424A and the Tribunal’s obligation in this regard, the Tribunal properly wrote to the applicant in discharging its obligation in relation to information contained in Departmental records which was not submitted by the applicant in relation to the protection visa application.

17. As to the remainder, it is clear that, on any plain reading of the Tribunal’s decision record (referring in particular to [41] and [62] and [87] to [90]), the Tribunal employed the facility available to it through s.424AA of the Act to discharge any obligation that may have arisen under s.424A(1) of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46).

18. In any event, in this regard I note that the Tribunal’s views and disbelief of the applicant’s evidence is not “information” for the purposes of s.424A(1). To the extent that the Tribunal relied on information provided by the applicant in writing to the Minister’s department, provided orally to the Tribunal during the hearing, or country information, all such information falls within the exceptions contained in s.424A(3) of the Act from the obligation in s.424A(1).

Conclusion

1. In all, therefore, I cannot see any jurisdictional error in the Tribunal’s decision.

2. As I repeatedly told the applicant today, for her to succeed before the Court the Court would need to see such jurisdictional error. As I cannot see such error this means that this decision is a privative clause decision for the purposes of the Act. Therefore I am going to make an order dismissing the application that has been made.

Costs

1. On the matter of costs, it is appropriate that the order for costs be made in the normal course of events in this matter. Despite opportunity, the applicant has put nothing before the Court such as to cause the Court not to make such an order. The applicant’s express lack of satisfaction with what the Court has done by saying that it did not believe her today is not such a reason as would cause the Court not to make the order sought. Again, it is merely yet another expression by the applicant of her misunderstanding and misconception about the nature of these proceedings.

2. As to the amount sought, I note that it is well within the range set out in the relevant Schedule to the Rules of this Court. But I am separately satisfied, when I have regard to the actual work that has been done in this case, that the amount sought is a reasonable amount. I will make the order in the amount sought by the Minister.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 16 August 2010