SZONX v Minister for Immigration
[2010] FMCA 876
•12 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZONX v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 876 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal had regard to all materials before it – whether an inconclusive report from the Document Examination Unit was information that enlivened s.424A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 424A; 424A(1); 474; pt.8 div.2 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 |
| Applicant: | SZONX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1658 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 27 October 2010 |
| Date of Last Submission: | 27 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Mandarin interpreter |
| Counsel for the Respondent: | Ms S. Sirtes |
| Solicitors for the Respondent: | Ms K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1658 of 2010
| SZONX |
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 30 June 2010 and handed down on 1 July 2010.
The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
The issues in this case are whether the Tribunal had regard to documents provided by the Applicant in support and whether an inconclusive report from the Document Examination Unit was information that enlivened s.424A of the Act. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 2 November 2007, having departed legally from Baiyun on a passport issued in her own name and a Subclass 580 (Student Guardian) visa issued on 4 October 2007.
On 24 July 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 7 October 2009, the Delegate refused the Applicant’s application for a protection visa.
On 5 November 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 30 June 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 30 July 2010, the Applicant 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 Applicant’s application for a protection visa
The Applicant provided a statement in support of her protection visa application in which she stated that she feared persecution by the Chinese authorities by reason of her being a member of an underground Christian church.
The Applicant claims she has been a Christian since August 2006, after her husband converted to Christianity in February 2003.
The Applicant claimed that, on the morning of 13 August 2006, she and her husband were detained by police following a raid on a Christian gathering they were attending. She claimed she and her husband were released at 1.00pm the next day after being required to pay money and being warned they would be more seriously punished if caught again.
The Applicant accompanied her son to Australia in November 2007 and claimed to have regularly attended church in Australia.
The Applicant claimed that, on 16 July 2009, her brother called her to tell her that, on 12 July 2009, her husband had been arrested during a raid at an illegal Christian gathering.
The Applicant claimed the arrested people were tortured and one told the police that the Applicant’s husband had been printing documents related to the church. The Applicant claimed her house was then searched and many religious documents found. The Applicant claimed her husband was then severely tortured until he confessed the Applicant’s involvement in Christianity, including printing documents. She claimed her relatives were required to report to the police station regularly. She claimed her brother called her on 20 July 2009 to tell her that her husband had been sent to a labour camp for six months.
The Delegate’s decision
On 7 October 2009, the Applicant attended an interview with the Delegate on 07 Oct 2009. The Delegate found the Applicant to be hesitant and uncertain in answering questions about her claim to be a Christian. The Delegate found her knowledge of Christianity to be unconvincing and was not satisfied that she has been a Christian for the past three years or so. The Delegate also had regard to her delay in lodging a protection visa application in July 2009, having arrived in Australia in 2007. Ultimately, the Delegate was not satisfied that the Applicant had a genuine fear of harm if she were to return to China.
On 7 October 2009, the Delegate refused the Applicant’s application for a protection visa 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 5 November 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of her review application enclosed in a letter, dated 4 April 2010, in response to a letter from the Tribunal, dated 25 March 2010. The letter identified for the Applicant inconsistent information provided by the Applicant in her Student Guardian visa application.
On 17 November 2009, the Tribunal wrote to the Applicant informing her 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 Applicant to attend a hearing on 11 December 2009 to give oral evidence and present arguments.
On 11 December 2009, 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 counsel for the First Respondent in her written submissions as follows:
“10. The Tribunal:
(a) Was not satisfied that the applicant’s claims to be a practicing Christian were plausible, based on her own evidence (CB 104 at [68]).
(b) Found the applicant did not demonstrate a level of knowledge of Christianity commensurate with her claimed associations and beliefs in China (CB 104 at [69]) and noted that the applicant had not provided a reason as to why she had not been baptised in China (CB 104 at [70]).
(c) Was concerned that the applicant’s behaviour in delaying her application for protection was not consistent with that of a person who held a genuine fear of return to China, although noted that its decision did not turn upon this point (CB 105 at [72]).
(d) Did not give the applicant’s documentary evidence weight by reason of its view that the documents were fabricated. The Tribunal noted that it had sent the documents for examination to establish authenticity however the result of this was inconclusive. Ultimately in respect of these documents, the Tribunal relied upon independent country information as to the prevalence of fraudulent documents in China (CB 105 at [73] to [74]) and inconsistencies between the content of the documents and the evidence given to the Tribunal (CB 106 at [75] to [78]).
(e) Was not satisfied that the police documents provided by the applicant were genuine, on the basis of the delay in providing the statements and conflicts between the applicant’s oral evidence and the documentary evidence (CB 106 at [78]).
(f) Rejected the claims that the applicant had been detained, prior to leaving China, by reason of religious involvement (CB 106 at [79]).
(g) Accepted that the applicant may have had some contact with Christianity through her husband and that would explain how she had some limited knowledge, but found that the paucity of her direct religious involvement led the Tribunal to accept her evidence that she had not been baptised (CB 106 at [80]).
(h) Noted that, despite claiming to have attended church since arriving in Australia, the applicant provided no evidence to support this claim and could not provide the names or addresses of any church she had attended, or the names of their pastors (CB 107 at [81]).
(i) Considered the applicant’s evidence that the reason for her attending an underground church, as opposed to an official church in Fujian, which ultimately emerged not as any doctrinal difficulty but because the underground church was closer to the applicant’s home. The Tribunal found that this put the applicant’s claims into perspective and indicated that it was not necessary for the applicant and her husband to have copied bibles (which was interrelated to her detention claims) (CB 107 at [83]). The Tribunal therefore found that the applicant’s claims of detention for prayer meetings and bible copying to be without credibility (CB 107 at [84]).
(j) Did not accept the applicant’s claims of being a practicing Christian in China or Australia or that she held a subjective fear of returning to China on the basis that she is a Christian or would face persecution for her religious beliefs, or on any other Convention basis (CB 107 at [85]).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter.
On 20 August 2010, the Applicant attended a directions hearing before me. The Applicant confirmed that she wished to continue with the application. The Applicant was 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. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. 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 she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court in support of her application.
The Applicant confirmed that she relied on the grounds contained in the initiating application filed on 30 July 2010 as follows:
“1. I am Christian. RRT refused my application unfair.
2. RRT did not weigh my evidence, saying my document is not true. It is not fair.
3. I will be put in detention centre in China if I return back to China.”
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.
The grounds were unsupported by particulars or written submissions.
In support of the grounds of her application, the Applicant asserted that the Tribunal did not give weight to her documents. She then proceeded to repeat the claims in support of her protection visa application. I explained to the Applicant that it was not for this Court to reconsider her claims and make different findings or reach different conclusions and that the role of the Court was far more limited than that of the Tribunal. I explained that the role of the Court was to consider whether or not the decision of the Tribunal was affected by a mistake that went to its jurisdiction and that disagreement with the findings and conclusions of the Tribunal rarely by itself established such a mistake. I asked the Applicant what she further wished to say in support of her application and she stated that she was afraid to go back to China.
I then asked the Applicant again, if there was anything further that she wished to add in support of her application to this Court. The Applicant, for the first time, raised a complaint that was certainly not apparent from the grounds of her application. Nor had she given the faintest indication of such a complaint until this time in the hearing. She stated that she had not understood the interpreter at the hearing. I asked what she meant by that complaint and she answered that when she was asked a question about Noah, the interpreter did not know about Noah and it took some time for the interpreter to be able to know who Noah was.
I explained to the Applicant that there was no evidence filed by her in support of this assertion. I then took the Applicant through the opportunities to file evidence in support of her application that she had been given at the directions hearing on 20 August 2010. I pointed out to her that the directions specifically drew her attention to the filing of any transcript or reliance on the recordings of the Tribunal hearing.
I explained to the Applicant that if she wished to maintain a complaint about the interpreter, she would need to seek leave from the Court to rely on that complaint and to provide evidence in support. She then said she did wish to have that leave. The leave was opposed by the First Respondent.
In separate reasons, the Applicant’s application for leave to raise the new complaint and give oral evidence in support was refused.
The Applicant made no other submissions in support of her application to this Court.
Ground 1
Ground 1 makes the bare assertion that the Applicant is a Christian and that the Tribunal’s refusal of her application is unfair. That complaint was unsupported by particulars or written submissions.
Ground 1 of the application appears to be more in the nature of a complaint about the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal did not weigh the Applicant’s evidence and found that documents she provided to the Tribunal were not true and that that finding was unfair. Ground 2 was unsupported by particulars, written submissions or meaningful oral submissions. The only oral submission made by the Applicant in support of Ground 2 was to repeat that the Tribunal had not given weight to her documents.
I understand the relevant documents to be as follows:
(i)A statutory declaration by the Applicant, sworn 12 April 2010 stating that she was arrested on 13 August 2006 following attendance at a family gathering. The Applicant stated that she was detained for 24 hours and fined. She stated that the reason she has no criminal record is because this was an “administrative punishment”.
(ii)A copy of an alleged penalty decision of the Fuqing City Public City Security Bureau, dated 13 August 2006.
(iii)A document purporting to be a release certificate dated 12 January 2010 in respect of the husband’s alleged arrest and detention on 12 July 2009.
The documents were enclosed in a letter dated 12 April 2010 from the Applicant’s migration agent. The letter was sent in response the Tribunal’s letter dated 25 March 2010 seeking comment on concerns it expressed about her evidence at the Tribunal hearing that she was arrested on 13 August 2006, detained and fined and that her husband is still in detention. The Tribunal’s letter stated that she had attached a document to her Student Guardian application indicating that there is no record of the Applicant having committed a criminal offence. The letter went on to explain to the Applicant that the information was relevant to the review because it may lead the Tribunal to conclude that she was not arrested or detained and that her evidence “may not be entirely accurate or factual.” The letter asserted that that may lead the Tribunal to “question the credibility of your evidence before it”. The Applicant was invited to comment in writing.
In relation to (ii) and (iii) above, the Tribunal noted that it requested the Applicant to provide, if possible, the original documents in support. The Tribunal noted that, on 12 April 2010, it received “clean and apparently new copies of the documents”, except for one document which purported to be the original of the Fuqing City Public Security Bureau Police Security Administrate Penalty Division, dated 13 August 2006, relating to the Applicant.
The Tribunal noted that on 19 April 2010 it sent those documents to the Department’s Document Examination Unit for verification. The opinion received by the Tribunal from the Document Examination Section, dated 19 May 2010, stated, that “the quality of the security limited the ability to determine whether these are legitimately manufactured and issued documents the result therefore is not conclusive”.
In relation to the Applicant’s explanation in her statutory declaration in (i) above, the Tribunal found the Applicant’s explanation of that inconsistency not to be adequate.
Ultimately, the Tribunal determined to give no weight to the documents provided by the Applicant as corroborative of her claims. The Tribunal stated this was because of the considerable amount of country information available to the Tribunal which suggested that fraudulent documents are readily available in China and elsewhere. The Tribunal’s decision record makes clear that the Tribunal explained in some detail particular concerns it had about each of the Applicant’s documents both at the hearing and in writing. The Tribunal had regard to the Applicant’s responses and explanations but was not persuaded by them.
The Tribunal is required to give to the Applicant, pursuant to s.424A(1) of the Act, any information that may be the reason or part of the reason for affirming the decision under review.
The Document Examination Unit’s report was capable of being information that enlivened s.424A of the Act. However, I accept the written submissions of Counsel for the First Respondent that “There is nothing in the Tribunal’s reasons to suggest the report was treated as adverse information: MIAC v SZLFX (2009) 238 CLR 507 at [26]”. In those circumstances, the report was not information that formed the reason or part of the reasons for affirming the decision under review.
Moreover, the inconclusive report form the Document Examination Unit did not “constitute “a rejection, denial, or undermining” of the Applicant’s claims to be a person to whom Australia had protection obligations: SZBYR v MIMIA (2007) 235 ALR 609 at [17]”.
The Tribunal’s determination to place no weight on those documents was no more than the Tribunal’s evaluation and assessment of the evidence and material before it. In those circumstances, the Tribunal is not obliged to give to an Applicant its own thought processes or to provide a running commentary on the Applicant’s evidence (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).
Further, I accept the written submissions of counsel for the First Respondent that “The Tribunal was not required to put the Applicant for comment its proposed findings on evidence, unless the conclusion sought to be drawn would not be obviously be open on the known material” (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29] to [32]). The documents were plainly provided by the Applicant in response to the Tribunal’s letter dated 25 March 2010. That letter made clear to the Applicant that the Tribunal had concerns about her evidence of past detention on 13 August 2006 and her husband’s alleged detention from 20 July 2009. In those circumstances, the issue of the Applicant’s credibility of past harm in respect of herself and her husband by reason of their Christian membership of a house church and their activities in relation to the publication of Bibles, would have been matters in respect of which it would be reasonable to expect the Applicant to be on notice.
Otherwise, it was open to the Tribunal to prefer the country information before it rather than the evidence of the Applicant. It is a matter for the Tribunal the country information to which it has regard and the weight it gives such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFA 10 at [11] per the Court (Gray, Tamberlin and Lander JJ)).
In the circumstances, the Tribunal’s decision record makes clear that the Tribunal had regard to the documents provided by the Applicant and sent them to the Document Examination Unit for analysis, having regard to country information before it that indicated that document fraud was prevalent in China. Because of the inconclusive report, the Tribunal was not prepared to accept the documents as corroborative of the Applicant’s claims.
Whilst I understood that the Applicant’s complaint about her documents was essentially confined to those documents sent to the Document Examination Unit, there was another document. The other document provided by the Applicant was a statement in support from a family friend, Mr M-. The Tribunal noted that Mr M- stated that, on 13 August 2006, the Applicant and her husband attended a “family gathering” at the home of Mr M- during which they were arrested. The Tribunal noted that “there was no suggestion that this was a religious gathering.” The Tribunal found that in all other respects the statement closely mirrored the statement made by the Applicant. The Tribunal noted that “Given the overall weakness of the applicant’s claims and evidence as a whole and the Tribunal’s resulting concerns about the applicant’s credibility, it has not given this evidence weight.” The Tribunal’s finding was open to it on the evidence and material before it.
Whilst it is true that the Tribunal did not give weight to the Applicant’s documents, its conclusion not to do so was open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the complaint in Ground 2 does not establish jurisdictional error on the part of the Tribunal.
Otherwise, the Tribunal’s decision record makes clear that there were other matters that caused the Tribunal concern and which formed part of the Tribunal’s adverse credibility findings. They are referred to below.
The Tribunal also had regard to the fact that the Applicant had arrived in Australia on 2 November 2007 and had not applied for a protection visa until 24 July 2009. The Tribunal noted that the Applicant gave evidence that she was well aware that she and her son were in Australia as unlawful non citizens and were not planning to return to China until mid-2009. The Tribunal found that conduct not consistent with a person who claimed to be living in genuine fear of returning to China on grounds that she may face persecution by reason of her religious convictions. The Tribunal stated that:
“in view of the applicant’s long delay in seeking to regularise her visa status, and her claim that she had intended to return to China, the sudden arrest of her spouse appears to be little more than an attempt to generate a new claim.”
Further, the Tribunal found that the Applicant was not able to demonstrate a level of knowledge about Christianity “commensurate with her claim to have been associated closely with Christians” since February 2003. However, the Tribunal did note that the Applicant claimed that she did not “believe” until August 2006. The Tribunal found that she demonstrated “a very inadequate knowledge of Christianity, its prayers and traditions.”
The Tribunal was also concerned about her claim to have read the Bible although she was only semi-literate. The Tribunal noted that it asked the Applicant to read to the Tribunal her statement regarding refugee status which was in Chinese characters. The Tribunal found that she demonstrated “great difficulty in reading the text.” The Tribunal found her claim that she was able to comprehend the meaning of prayers by listening to preachers and that God had taught her to read the Bible as not plausible.
The Tribunal also rejected the Applicant’s claim of having copied Bibles with her husband in the light of country information that suggested that Bibles were readily available in China, especially in Fujian province.
The Tribunal noted that it asked the Applicant why she had not attended an official church in Fujian and noted her response that occasionally she had done so. The Tribunal noted that, when pressed, the Applicant stated she had no doctrinal issues in this regard. Accordingly, the Tribunal was satisfied that, if the Applicant were to return to China, and wish to pursue Christianity, she would have no moral or doctrinal difficulties in attending an official church. The Tribunal noted that her only reason for claiming she had attended a house church was because it was closer to where she lived.
Ultimately, the Tribunal rejected the Applicant’s claims of being a Christian and suffering past harm for that reason. The Tribunal found that the Applicant did not have a subjective fear of returning to China on the grounds of her Christianity; nor was she at risk of persecution for her religious beliefs or for any other Convention related ground, if she were to return to China.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are matter par excellence for the Court (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Ground 3 made the bare assertion that the Applicant would be placed in a detention centre if she was to return to China. That complaint does not identify any error capable of review by this Court.
Accordingly, none of the grounds of the application are 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 both at the hearing and in writing and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard. 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 seventy-five (75) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 12 November 2010
2
7
2