SZOKU v Minister for Immigration
[2010] FMCA 522
•20 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOKU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 522 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91R(3); 474; pt.8 div.2 |
| Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; [2009] HCA 40 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Multicultural Affairs vRajalingam (1999) 93 FCR 220 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 |
| First Applicant: | SZOKU |
| Second Applicant: | SZOKV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1098 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 20 July 2010 |
| Date of Last Submission: | 20 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2010 |
REPRESENTATION
| The Applicant appeared in person assisted by a Fuqing interpreter |
| Solicitors for the Respondent: | Mr B. May, Australian Government Solicitor |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1098 of 2010
| SZOKU |
First Applicant
| SZOKV |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 April 2010 and handed down the same day.
The first named applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”). The second named applicant is the Applicant’s son and his claims are dependent entirely on the claims of the Applicant.
The applicants arrived in Australia on 29 February 2008 having departed legally from Fuzhou Airport on passports issued in their own names. The second applicant travelled on a subclass 571 schools sector visa which was cancelled on 28 July 2009 under s.116 of the Act. The Applicant travelled on a subclass 580 student guardian visa issued on 6 February 2008. The Applicant’s visa was cancelled on 3 August 2009 under s.140 of the Act as a result of the cancellation of the second applicant’s visa cancellation. It was a condition of the Applicant’s visa that the second applicant be the holder of a subclass 571 visa.
On 2 September 2009, the applicants lodged an application for protection (Class XA) visas with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 17 December 2009, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for protection visas.
On 15 January 2010, the applicants lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 20 April 2010, the Tribunal affirmed the decision of the Delegate not to grant the applicants protection visas.
On 19 May 2010, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The applicants’ application for protection visas
The applicants provided a statement in support of their protection visa application in which the Applicant stated that she feared persecution by the Chinese authorities by reason of her Christianity.
The Applicant claimed that her introduction to Christianity came when a Christian friend invited her to attend an underground church activity where she met her husband, also a Christian, who she married on 27 November 1990. She stated her son was born the following year.
The Applicant claimed that, through her husband’s influence, she slowly converted to Christianity and attended underground church gatherings.
The Applicant claimed that, on 15 June 2006, during a church gathering the gathering was reported and all seven attendees were arrested and interrogated. She claimed she was held for two days, hit by a policewoman and her husband was tortured. She claimed she was required to write a “remorse statement” and cease participating in illegal gatherings. She claimed her father paid money for her and her husband’s release.
The Applicant claimed that, following their detention, she and her husband rarely participated in gatherings. She claimed police searched her house often and told other villagers she and her husband could kill people and to stay away from them. She claimed her children were bullied.
She claimed she called her husband on Christmas eve (presumably in 2008) and received no answer. She claimed that three days later she contacted him and he told her that he had been arrested whilst preparing for Christmas and held for three days. He claimed that he had to pay a large fine and would no longer be able to support the second applicant’s studies in Australia and so the second applicant had to abandon his studies.
The Applicant claimed that she attended church in Australia.
The Delegate’s decision
On 17 December 2009, the Applicant attended an interview with the Delegate.
On 17 December 2009, the Delegate refused the applicants’ application for protection visas on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 15 January 2010, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided further documents in support of their review application.
On 9 February 2010, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 12 March 2010 to give oral evidence and present arguments.
On 12 March 2010, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent, Mr May, in his written submissions as follows:
“9. In its findings, the Tribunal noted that it had considered the applicant's claims as set out in her Protection visa application and her evidence before the delegate and the Tribunal. Those claims, and the evidence, are also set out and summarised in the Tribunal's Statement of Decision.
10. The Tribunal was not satisfied that the applicant practised as a Christian in China nor that she and her husband had been detained as claimed.
11. In its findings, the Tribunal referred to a number of inconsistencies, contradictions and implausibilities in the evidence given by the applicant, which led it to conclude that she was not a truthful or credible witness in relation to the claims made by her. The issues of concern to the Tribunal are summarised below.
12. The Tribunal noted the applicant claimed to have been involved with underground Christian activities from 1990 but that she had not been an active member of the church and had not reached the "level suitable for baptism." The Tribunal was not satisfied the applicant was ever involved with Christian gatherings in China and was not satisfied the applicant was a Christian in China.[1]
13. The Tribunal noted that the applicant had commenced preparation for baptism since attending the Church at Ashfield, also noting the applicant did not attend this Church until June/July 2009. While accepting this evidence, the Tribunal concluded the applicant had only attended this Church in the hope that doing so would support her application for a Protection visa.[2] Accordingly the Tribunal disregarded this conduct pursuant to s 91R(3) of the Act.[3]
14. The Tribunal noted discrepancies in the evidence given by the applicant in relation to the gathering which she claimed had been held on 15 June 2006 and which led to her detention, together with her husband. Those discrepancies related to the place at which the gathering was held and the people who attended. As a consequence, the Tribunal was not satisfied that the applicant and her husband had attended that gathering or that they had been detained.[4]
15. The Tribunal also noted a number of discrepancies in evidence given by the applicant as to injuries suffered by her and her husband during their detention. This led the Tribunal to conclude that neither the applicant nor her husband had been detained or assaulted as claimed.[5]
16. The Tribunal accepted that the applicant and her son had arrived in Australia as holders of a student guardian visa and student visa respectively. However, the Tribunal noted the applicant did not lodge a Protection visa application until 2 October 2009, after those visas had been cancelled. The Tribunal concluded that the applicant had departed China not because she feared persecution because of her Christian faith, and had only applied for a Protection visa as a means of remaining in Australia.[6]
17. The Tribunal was therefore not satisfied the applicant was a credible witness, and rejected her claims that she was a Christian or targeted because of her Christian religion in China.”
[1] RD 132-133 at [73 - first dot point]
[2] RD 132-133 at [73 - first dot point]
[3] RD 134 at [75]
[4] RD 133 at [73 - second dot point]
[5] RD 133 at [73 - third dot point]
[6] RD 133 at [73 - fourth dot point]
The proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Fuqing interpreter. The Applicant appeared on behalf of both applicants and the second named applicant did not attend Court.
On 10 June 2010, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that she wished to continue with the application. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. However, the panel advisor was unable to contact the Applicant and the Applicant confirmed this morning that she did not attempt to contact the panel advisor. The Applicant stated that she did not know if she had received a letter from the Court, dated 17 June 2010, sent to the applicants at the only address provided by the applicants and advising them of the contact details of the panel advisor and telling them to contact the panel advisor if he had not contacted them within three weeks. At the directions hearing, the Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing, the Applicant confirmed that the applicants had not filed any amended application, evidence or submissions in support of their application and that they had no further documents to present to the Court this morning in support of their application.
As stated above, the Applicant confirmed to the Court that she had not met with the panel advisor, nor had any contact with him. I informed the Applicant that an email from the panel advisor stated that the panel advisor had made four unsuccessful attempts to contact the Applicant. The panel advisor noted that three attempts were made through the Telephone Interpreting Service and once he tried personally. The panel advisor noted that the TIS operator told him that the Applicant’s mobile was turned off. The panel advisor stated that when he tried to ring the Applicant’s mobile there was no ring tone and he could not leave a message. As stated above, the Applicant said that she did not know whether or not she had received the letter from the Court providing her with the contact details of the panel advisor and informing her to contact the panel advisor if she did not hear from him.
The Applicant did not seek an adjournment in order to obtain legal advice. However, even if such an application had been made the solicitor for the first respondent, Mr May, informed the Court that such an application would be opposed. Certainly, there is no entitlement to free legal advice. The applicants were given an opportunity to obtain free legal advice from a panel member of the Court’s Legal Assistance Scheme. As stated above, the advisor made four attempts to contact the applicants without success. As stated above, the Court wrote to the applicants on 17 June 2010 providing them with the contact details of the panel advisor and advising them to ring the panel advisor if he had not made contact within three weeks. The Applicant did not deny that she received that letter. Rather, she said she did not know. I note that the letter was addressed to the applicants at the only address provided by the applicants to this Court. Further, as stated above, at the directions hearing before this Court on 10 June 2010, the Applicant was provided with the contact details of legal services providers and interpreting and translating services in documents headed in her own language.
In the circumstances, the Applicant has had sufficient time to seek to obtain any legal advice or to make enquiries of the Court’s legal advice scheme. She did neither. Accordingly, had an adjournment been sought by the Applicant, it would have been refused.
The Applicant confirmed that the applicants relied on the grounds contained in an application filed on 12 May 2010 as follows:
“1. I am a Christian and should receive protection since I was persecuted in China.
2. RRT did not weight my evidence and made the decision with bias.
3. RRT low assess my risk to return to China and use unsuccessful cases against me.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
Ground 1 does not identify any error capable of review by this Court. The Applicant was invited to say whatever she wished in support of the ground. She stated that no attention had been given to her claims. However, the Tribunal’s decision record does not support such an allegation.
The Tribunal quoted in full the Applicant’s statement in support of her protection visa application and summarised in detail the interview that the Applicant had with the Delegate.
At the Tribunal hearing on 12 March 2010, the Tribunal explored the Applicant’s claims with her and summarised exchanges it had with her about her evidence. The Tribunal noted matters of concern that it put to the Applicant arising out of her evidence and noted her responses. In particular, the Tribunal asked her why she had waited until February 2008 to travel to Australia when she said she began to prepare to travel to Australia in July 2007. The Tribunal noted her response that they could not afford to travel before then and her son graduated in 2007. The Tribunal noted that it put to the Applicant that she had not lodged her protection visa application until her student guardian visa had been cancelled. The Tribunal noted the Applicant’s response that she did not know about the cancellation. The Tribunal then noted that it asked her why she did not apply for a protection visa when she first arrived in Australia and noted her responses.
The Tribunal also put to the Applicant that it was of concern that she had never been baptised or prepared for baptism given her claim to have been involved with Christianity since 1990 and that her husband had been baptised.
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicants provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 10 June 2010, the applicants were given an opportunity to file a transcript of the Tribunal hearing. The applicants were also directed to give notice if they wished to rely on recordings of the hearing. However, no step was taken by the applicants to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
Ultimately, the Tribunal was not satisfied that the Applicant had ever practised as a Christian in China or that she and her husband were detained as claimed. The Tribunal comprehensively rejected the Applicant’s claims and found her not to be “a truthful or credible witness”. The Tribunal found her evidence to be inconsistent, contradictory and implausible.
The Tribunal accepted that she may have started to attend church in Australia in July 2009 but was not satisfied that the Applicant practised Christianity in Australia and attended church at Ashfield, other than for the purpose of strengthening her claims to be a refugee. In disregarding that conduct as supportive of her claims, the Tribunal complied with s.91R(3) of the Act.
The Tribunal had regard to the Applicant’s conduct in Australia as part of its reasons for its adverse credibility findings in respect of the Applicant. However, evidence of that conduct and findings about the Applicant’s motivation for that conduct may be applied to discredit the Applicant’s claims (Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; [2009] HCA 40 at [9] per French CJ and Bell J and [64]-[65] per Crennan and Kiefel JJ).
The Tribunal rejected the Applicant’s claims ever to have been Christian in China or targeted for that reason. The Tribunal also rejected the Applicant’s claims in respect of her husband’s arrest and detention in 2008. The Tribunal was not satisfied that the Applicant or her husband were of adverse interest to the authorities in China for the Convention reason of their Christian religion. For that reason, the Tribunal was not satisfied that there was a real chance that the Applicant would suffer serious harm for the Convention reason of her religion if she were to return to China in the reasonably foreseeable future.
The Tribunal’s findings and conclusions were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 is not supported by particulars or evidence.
In support of Ground 2, the Applicant said that the Tribunal did not consider how dangerous it would be if she were to return to China. However, the Tribunal comprehensively rejected the Applicant’s claims of ever having been a Christian in China or of ever having been persecuted for that reason. Those findings were not attenuated by doubt. In the light of those findings, it was not necessary for the Tribunal to consider in particular, how dangerous it would be for the Applicant to return to China beyond its determination that there is not a real chance that the Applicant would suffer harm for reasons of her religion if she returned to China in the reasonably foreseeable future (See Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220).
In relation to the allegation of bias in Ground 2, I asked the Applicant in what way she said the Tribunal was biased. The Applicant responded that she had suffered a lot in China but that the Tribunal did not believe her. Such a complaint is not by itself capable of establishing bias on the part of the Tribunal.
Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
As stated above, the applicants were directed on 10 June 2010 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the Tribunal hearing. As stated above, the applicants were also directed to give notice if they relied on recordings of the Tribunal hearing. As stated above, no such evidence was filed by or on behalf of the applicants. Neither did the Applicant seek to tender the recordings of the Tribunal hearing this morning in support of the allegation of bias.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, the allegation of bias or apprehended bias is rejected.
Otherwise, Ground 2 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review, which this Court cannot undertake.
As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 is unsupported by particulars or evidence. The Applicant made no meaningful or relevant submissions in support of Ground 3. On its face, Ground 3 does not identify an error capable of review by this Court. Again, Ground 3 appears to be no more than a disagreement with the findings and conclusions of the Tribunal. As stated above, such a complaint invites merits review, which this Court cannot undertake.
Accordingly, Ground 3 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 20 July 2010
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