SZOVS v Minister for Immigration
[2011] FMCA 226
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVS v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 226 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal did not consider the applicant’s application fairly, reached incorrect findings of fact, did not weigh the evidence and failed to have regard to the applicant’s brain injury. |
| Migration Act 1958, ss.422B, 424, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZOVS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2686 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 March 2011 |
| Date of Last Submission: | 29 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2686 of 2010
| SZOVS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China. She alleges that while in China she attended an underground Catholic church and that this led to her arrest and detention.
The applicant claims to fear persecution in China because of her religion.
After her arrival in Australia on 19 August 2009 on a Student Guardian visa, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 27 April 2010. 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 – 26 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
In a statement attached to her protection visa application the applicant made the following claims:
a)Her husband has been a Catholic since he was young and after she married him she gradually became a believer with his guidance;
b)Her husband was the leader of an underground Catholic church and in this role he organised church activities, visited sick believers, arranged church services and informed everyone if a priest was attending to hold mass. She worshipped at home and prayed for sick believers;
c)On 10 June 2007, while attending a church service at the home of another church member, the house was raided by the police and everyone present was taken to the local police station. Whilst most of them were released the next day, she was detained for a month. During her detention she suffered starvation and sleep deprivation as well as physical and verbal abuse;
d)With the help of friends and fellow church members she gave the leader of the police station a bribe and was released in July 2007 on condition that she give an undertaking that she would not join unsanctioned underground Catholic church activities;
e)In August 2009, while her husband was attending a home church service, the house was raided and he was arrested. The police searched their home, her personal details were seized and the police became aware that she was in Australia and that she had previously given an undertaking that she would not join in underground Catholic church activities;
f)She has been involved in Catholic church activities since coming to Australia; and
g)She fears she will be persecuted if she returns to China because her husband is the leader of an underground Catholic church, she has a police record and the government is concerned that she will bring back information about freedom of belief and religion in Australia. Her fellow believers have told her that she should not come back.
The applicant attended a Tribunal hearing which was held over three days: 29 July 2010, 26 August 2010 and 29 October 2010.
At the first Tribunal hearing day, the applicant made the following claims:
a)Since she was persecuted in China she could not remember things and had had problems with her brain. She had headaches because she was hit on her forehead;
b)Her daughter was brought up as a Catholic but had not been baptised. Sometimes she would show her daughter the Bible but her daughter had other books to study and would study the Bible in the future;
c)Since she arrived in Australia, her mood and her memory had improved; and
d)She attended a church in Australia about once every fortnight and had last attended a month earlier. Her daughter did not attend with her. She had asked around while buying vegetables if there was a Catholic church nearby and “they” took her there. She could not find it by herself and was too scared to go alone. She needed someone to take her there but her daughter was too busy to take her.
The applicant’s daughter, who was an applicant for review as well, also gave evidence to the Tribunal. She said that her mother had problems with her brain and often forgot things and she had noticed this since her family was persecuted and her mother beaten by the police. She said that elders in her family had told her that her father was involved in an underground church; she was not sure of the details but she knew that the church was forbidden by the local government and that people were often arrested. She also said that her father had been in prison for three years about five or six years ago and that she had not been permitted to see him. She also said that her parents had not lived together since she was in primary school because her mother had to take care of her grandmother.
The applicant’s daughter gave evidence that she knew that her parents had been beaten and forbidden from organising the underground Catholic church in their area. She said that while she was not Catholic she believed in it in her heart but she did not dare practise because her parents were detained and beaten. She gave further evidence that her mother attended church in Australia every week and had probably last attended a week earlier but she had never been to church with her and was not sure if her mother had a Bible. She further said that she had not taken the applicant to a doctor because her memory problems were not really a condition, a doctor might not be able to help her and the applicant did not want to go to a doctor.
At the second Tribunal hearing day, the applicant made the following additional claims:
a)Her sister’s husband drove her to church after her arrival in Australia. However, she had not been to church for a while because she had a mental condition and was always upset. Sometimes she could not find the church but she had never been there alone;
b)There were no registered Catholic churches in China as Catholicism was prohibited by the Chinese authorities. Therefore she had to attend an underground church which was not allowed and would lead to persecution if discovered by the authorities; and
c)Her husband beat her in the past and she was also beaten “because she was persecuted”. She was afraid of being arrested if she went back to China and was also afraid of her husband.
The Tribunal also took evidence from the applicant’s sister by telephone. The applicant’s sister said that her husband had taken the applicant to church a few times because the applicant did not know how to take the train. She also said that the applicant had been beaten on her head in China, no longer talked properly and was “like a fool”. She gave evidence that the applicant had been beaten for “many reasons” but could not say what those reasons were although she knew that the applicant’s husband used to beat her. She said that she did not know if the applicant and her husband were divorced but she knew that they had been separated for many years. She said that the applicant told her that she had been harmed by the Chinese authorities but she did not know the details and she was worried that other people might mistreat and beat her sister if she went back to China because people in China do that without reason.
At the third Tribunal hearing day on 29 October 2010, the applicant submitted a medical certificate dated 27 October 2010 which stated that she was suffering from a headache and hypertension and “will not be/was not fit for duty from 26 October 2010 to 27 October 2010”. The applicant said that she had not obtained a medical report about her brain problems. She said that visiting a doctor was very expensive and so she did not do it.
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 was not satisfied that the applicant had suffered a brain injury or that she had difficulties recalling information as a result of a brain injury or for any other reason. The Tribunal found that these claims had been fabricated to account for the vague and inconsistent evidence provided in support of the refugee claims advanced, noting in this regard that:
a)Aside from a doctor’s note that she suffered from headaches and hypertension, the applicant did not provide any medical evidence to corroborate her claimed brain problems. In addition, the medical report in support of her application for a student guardian visa did not indicate that she had any health problems;
b)Despite her claimed mental and memory problems, the applicant was able to recall specific dates and times of events of her alleged persecution as set out in her statement accompanying her protection visa application but was unable to provide answers to simple questions put to her by the Tribunal; and
c)There was no plausible explanation for the inconsistencies between the evidence given by the applicant and her daughter in relation to the cause of the applicant’s claimed brain injury and the evidence given by the applicant’s sister on this topic.
The Tribunal found that the applicant and her daughter were not reliable, credible or truthful witnesses. In this regard:
a)The Tribunal noted the significant inconsistencies in the evidence of the applicant and her daughter in relation to the timing of the applicant’s detention which led to her claimed brain injuries and the timing and duration of the arrest and detention of the applicant’s husband;
b)The Tribunal noted in relation to the applicant’s evidence concerning her police record that she provided a police clearance certificate from her local police in support of her student guardian visa application, as well as a household registration certificate and a permanent residence card, all issued after the date of her claimed arrest and detention. The Tribunal found that the applicant, her husband or someone on their behalf was willing to approach the local authorities and had no difficulties in obtaining official documents. As this was inconsistent with the claims that the applicant and her husband were or are of adverse interest to the Chinese authorities the Tribunal was not satisfied that the applicant had been truthful in her claim regarding her and her husband’s arrest and detention and found that she was not afraid of the Chinese authorities as claimed; and
c)The Tribunal found that the evidence provided by the applicant’s sister, together with what it described as her demonstrated reluctance to give evidence and to promise to tell the truth, and her vague and evasive responses, indicated that the claims made by the applicant were not true.
The Tribunal noted the applicant’s evidence that even though she had not lived with her husband for several years, she still telephoned him to ask him to drive her to the airport and he not only did this but he also gave her $2,000. Given this behaviour the Tribunal was not satisfied that the applicant feared her husband as claimed.
The Tribunal was not satisfied that the applicant or her husband are or were members of the underground Catholic church as claimed or that they had experienced adverse attention from the Chinese authorities because of their claimed participation in the unregistered Catholic church or for any reason. The Tribunal was also not satisfied that the applicant was a genuine Catholic or that she would seek to participate in an unregistered Catholic church on her return to China. In this regard:
a)The Tribunal found that the evidence of the applicant’s daughter did not indicate that she was the daughter of two devout underground Catholic parents, one of whom is claimed to be a leader. Although the Tribunal took into account the evidence that the applicant’s daughter is not a Catholic herself, her demonstrated lack of awareness of or interest in Catholicism did not support the applicant’s claim to have been a member of the underground Catholic church;
b)The Tribunal noted that the applicant lacked knowledge of important aspects of the Catholic church. The Tribunal also had regard to independent information which revealed that registered Catholic churches exist in China and observed that when asked why she did not attend these, the applicant had said that there were no registered Catholic churches in China;
c)The Tribunal found that the applicant’s evidence regarding her inability to attend church in Australia unaccompanied reflected an absence of genuine Catholic faith rather than any real difficulty in getting to church. In this regard, the Tribunal noted that at the hearing on 26 August 2010 the applicant had said that she had been accompanied to the Tribunal premises by a friend but would find her own way home by catching a train; and
d)In light of the applicant’s conflicting evidence about her church attendance in Australia, the Tribunal was not satisfied that she had attended church in Australia as claimed or had engaged in any activities in Australia that would bring her to the attention of the Chinese authorities.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.RRT did not consider my application fairly.
2.I am a Catholic and I was persecuted by the local government and police.
3.RRT did not weigh my evidence. I got fear to go back to China.
At the hearing the applicant also submitted that she had told the Tribunal that she had problems with her brain.
Tribunal did not consider application fairly
The first allegation made in the application commencing these proceedings potentially contains two aspects. The first of these is that the outcome arrived at by the Tribunal was not, to the applicant’s mind, fair in that it was not in her favour and the second is that the procedure by which the Tribunal considered the application before it was not fair.
The first of these invites the Court to reach a conclusion on the review application different to the one which the Tribunal reached. The Court cannot do this. As stated earlier in these reasons, the Court cannot rehear the applicant’s application for a visa. Its role is limited to determining whether the Tribunal applied proper procedures and properly applied the law in reaching its decision. For these reasons, the first possible interpretation of the first allegation made in the application does not disclose a basis upon which the Court may set the Tribunal’s decision aside.
The second potential aspect of the first allegation relates to the Tribunal’s obligation to provide the applicant with procedural fairness in the conduct of its review. In this regard, s.422B of the Act codifies the Tribunal’s procedural fairness obligations, as far as they arise out of the natural justice hearing rule, in those provisions found in div.4 of pt.7 of the Act. It can be noted at this point that the applicant did not allege bias against the Tribunal.
The applicant has not alleged that any of the particular sections found in div.4 of pt.7 of the Act have been breached or not observed by the Tribunal. Nevertheless, it is appropriate to consider the more important of them, ss.424A and 425. Section 424A relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
In this case, the Tribunal was obliged to put to the applicant information arising out of the evidence given by her daughter and sister. It did this in letters dated 18 August 2010 and 30 September 2010. The other information before it, such as information which the applicant had supplied in writing to the Minister’s department or to the Tribunal for the purposes of its review, and independent country information, fell within the exceptions to the operation of s.424A(1) found in s.424A(3) and did not need to be notified to the applicant. I find that the Tribunal met its obligations under s.424A.
Section 425 relevantly provides:
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
The Tribunal invited the applicant to a hearing to give evidence and present arguments in support of her claim to be entitled to a protection visa and held its hearing over three separate days. As a result, the Tribunal satisfied one part of its obligations under s.425.
The Tribunal also had an obligation to ensure that the applicant was aware of the issues arising in relation to the decision under review which would be determinative of her claim. In this regard, the Tribunal’s summary of its hearings discloses that it put the applicant on notice that the evidence before it appeared not to support her claims to have suffered a brain injury, that it was concerned that doubts had been raised about the credibility of her claims to be of adverse interest to the Chinese authorities, that the evidence that her husband had taken her to the airport to leave China was inconsistent with her claim to fear him and that it had concerns arising out of the evidence given by her sister.
Further, in the first s.424A letter the Tribunal pointed to inconsistencies between the evidence given in the applicant’s application for a student guardian visa and what she had told the Tribunal, suggesting that she was not of adverse interest to the authorities as claimed and that she was not afraid of them as claimed; that her daughter’s evidence was inconsistent with the applicant’s claims which might lead it to conclude that neither she nor her husband had been Catholics or were connected to the underground Catholic church in China as claimed; that her daughter’s evidence was inconsistent with the applicant’s evidence concerning when the applicant was arrested and detained and that it might find that the applicant had not been truthful in her claims to have experienced adverse attention at the hands of the Chinese authorities and that she had fabricated those claims which, in turn, might cause it to doubt the credibility of her evidence more generally. In the second s.424A letter the Tribunal pointed to discrepancies between the evidence of the applicant and her sister, stating that this might lead it to conclude that her claims to have been a practising Catholic or an actual or perceived member of the unofficial Catholic church in China had been fabricated in order to support her application for “refugee status”.
The matters which the Tribunal put to the applicant, whether in the s.424A letters or at its hearing held over three days, sufficiently identified to the applicant those issues which were determinative of her review application and, in so doing, it satisfied its other obligation under s.425.
As already noted, the applicant did not point to any particular provision in div.4 of pt.7 of the Act which had been contravened and it is not apparent that any of the remaining sections in that division were. For the forgoing reasons, the first ground of the application does not disclose jurisdictional error on the Tribunal’s part.
Applicant a Catholic and persecuted by authorities
The second ground of the application invites the Court to review the Tribunal’s factual findings that the applicant was not a Catholic in China and had not been subject to the adverse attention of the Chinese authorities or persecuted on that account. Absent vitiating factors which are not present in this case, the Court cannot review findings of fact made by the Tribunal. As with the ultimate merits of the review application, these are matters reserved for the Tribunal and are not ones in respect of which the Court has the power to substitute its views for those of the Tribunal.
Tribunal did not weigh evidence
The allegation in the third ground of the application, that the Tribunal did not weigh the applicant’s evidence, also invites the Court to trespass on the Tribunal’s fact finding role. The evidence upon which the Tribunal relies when reaching its decision, and the weight which it gives to various aspects of that evidence, is a matter for it alone and the Court cannot trespass on the Tribunal’s responsibilities in this area.
The third allegation made by the applicant might also be interpreted to assert that the Tribunal failed to consider aspects of the evidence which the applicant put before it for consideration. With the possible exception of the applicant’s allegation to have suffered a memory-affecting brain injury, considered in detail later in these reasons, the applicant identified no matter or issue which she said she had raised with the Tribunal but which it had failed to consider. It is not apparent that the Tribunal did fail to consider the evidence or claims which the applicant placed before it and, in this regard, it can be noted that the applicant did not challenge the accuracy of the Tribunal’s summary of the hearings before it as reproduced in its decision record.
For these reasons, the third ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Submissions at the hearing in this matter
At the hearing in this proceeding the applicant submitted that she had told the Tribunal that she had problems with her brain, while conceding that she had not supplied the Tribunal with a medical certificate addressing that issue. The submission implied that the Tribunal had failed to take proper account of the applicant’s claim to mental impairment allegedly arising out of the persecution she had suffered as a result of her membership of an underground Catholic congregation. An analysis of the Tribunal’s conduct of the review, as revealed by its decision record, does not bear out such an implication. At para. 34 of its decision the Tribunal recorded the allegations which the applicant made in relation to her brain injury. The applicant has not suggested that this summary was inaccurate in any way. At para. 50 of its decision the Tribunal recorded that the Tribunal asked the applicant why she had not seen a doctor in Australia in relation to her claimed brain problems and recorded that she said that after she came to Australia she felt in a better mood, her memory had improved and it was much better than it had been in China. At paras. 53 and 57 the Tribunal recorded that, at its hearing, it discussed the applicant’s claimed memory problems with her daughter, the latter saying that her mother could not remember anything clearly, forgetting things quickly as her memory was not very good. The applicant’s daughter is also recorded at para. 62 of the Tribunal’s decision as saying that what her mother had was not really a condition and a doctor might not be able to help her, in addition to which the applicant did not wish to see a doctor.
The Tribunal adjourned the first day of hearing so that the applicant could have time to explore the option of obtaining, amongst other things, a detailed mental health report addressing her claims to be unable to recall information. At the resumed hearing on 26 August 2010 the Tribunal asked the applicant whether she had seen a doctor since the adjournment of the hearing and she responded that she had not. During that adjournment the Tribunal had also sent its s.424A letter dated 18 August 2010. That letter included a s.424 invitation to supply medical evidence which was expressed in the following terms:
You are also invited to provide the following information in writing:
1.Detailed medical evidence prepared in accordance with the enclosed Guidelines on Expert Opinion Evidence regarding your claimed memory/brain problems which includes an opinion regarding:
· the nature of any brain/memory problems you have;
· how any such brain/memory problems impact on your daily life and your ability to recall information and give evidence;
· how long you have had any such brain/memory problems.
At the third hearing day, on 29 October 2010, the applicant submitted a medical certificate referring to her headache and hypertension but no medical evidence touching on her claimed brain injury.
Plainly, the Tribunal was aware of the applicant’s allegations concerning the existence of a brain injury and the memory problems said to be consequent upon it. At para. 120 of its decision record the Tribunal set out in some detail the steps it took to address this issue. In particular, it gave the applicant more than one opportunity to advance evidence in support of her allegation to have suffered a memory-affecting brain injury.
By acknowledging the applicant’s claim to have suffered a memory-affecting brain injury and by permitting the applicant, indeed encouraging her, to substantiate the claim by relevant evidence, the Tribunal discharged its obligations to her in connection with this issue. The Tribunal’s rejection of the applicant’s allegations in this regard was based on her failure to adduce evidence in substantiation of them, coupled with the fact that the medical examination which she undertook as part of her application to obtain a student guardian visa disclosed that she had no relevant physical or mental conditions and the examining doctor reported no significant history or abnormal findings in respect of her. Clearly, the Tribunal’s conclusion that it was not satisfied that the applicant had suffered a brain injury as claimed or that she had difficulties recalling information as a result of that injury or for any other reason was open to it on the evidence and a logical conclusion to reach in the circumstances.
For these reasons, the applicant has failed to demonstrate that the Tribunal’s treatment and consideration of her claim to have suffered a memory-affecting brain injury or the conclusion that it reached on that issue were affected with jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 April 2011
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