SZOWD v Minister for Immigration
[2011] FMCA 237
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOWD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 237 |
| 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;424A, 474; pt.8 div.2 |
| Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; |
| Applicant: | SZOWD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2726 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 March 2011 |
| Date of Last Submission: | 8 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| The Applicant appeared in person, assisted by a Mandarin interpreter. |
| Counsel for the Respondent: | Mr Cleary |
| Solicitors for the Respondent: | Ms Totoeva (Clayton Utz) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2726 of 2010
| SZOWD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
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 and handed down on 24 November 2010.
The applicant claims to be a citizen of the People’s Republic of China (China) and a member of the underground Roman Catholic Church (“the Applicant”).
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 March 2010 having departed illegally from China on a false passport issued in another name and a subclass TR 676 Tourist visa
On 21 April 2010, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 30 July 2010, the Delegate refused the Applicant’s application for a protection visa.
On 23 August 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 24 November 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 17 December 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 Statutory Declaration in support of his protection visa application in which he stated that he feared persecution by the Chinese Communist Party because of his Catholic faith.
The Applicant claimed that since February 2002, he worked alongside Catholics from his home town in a seafood shop owned by one of his church fellows. He said that he and his colleagues gathered there every Sunday morning to pray.
The Applicant claimed that on the morning of 2 June 2002, four police officers and two local street committee officials interrupted the Applicant’s morning prayer at the seafood shop and asked for identification. The workers were told that their religious gathering was illegal. The officials took into custody everyone at the gathering except the Applicant and another person as they were both less than
18 years of age. The Applicant claimed that he and the other person aged under 18 years were warned not to participate in any further underground church activities. The Applicant claimed that those taken into custody were detained for three days, and the shop owner was forced to shut down his business after being asked to leave Beijing.
The Applicant claimed that on the morning of 26 May 2005, approximately 10 police officers entered a house in Dongying Village where the Applicant and his church members were gathered to celebrate a religious feast known as the Corpse Christi feast. The police ordered the church members to stop their activities, searched the premises and confiscated all religious materials. All the participants other than minors and the elderly were taken to Longtian police station. The Applicant claimed that he was interrogated at the police station for approximately 2 hours and was beaten with a belt and truncheon. The detainees were required to pay 2,000 RMB before being released the following afternoon, although the couple who had provided the home for the religious gathering were detained for 15 days before being released.
The Applicant claimed that in mid 2009, he established a painting and plastering trade employing 8 workers. The Applicant claimed that whilst working with them, he distributed religious materials to the employees and read Bible stories with them. In the afternoon of
10 February 2010, the Applicant’s wife informed the Applicant by phone that police officers had come to their home to summon him. The Applicant claimed that his wife told him that the police had linked him to religious material found at the residence of two of his employees. The Applicant claimed that the police returned to look for him at his home the following and said that if he did not report to the police station, he would receive a miserable lesson.
The Applicant claimed that following this incident, he decided to leave China for safety reasons. On 1 March 2010, the Applicant departed China on a false passport and arrived in Sydney, Australia on 2 March 2010.
The Applicant started attending church services in Sydney and attends mass conducted in Mandarin every Sunday. The Applicant fears that he will be persecuted by Chinese authorities because of his Roman Catholic faith, if he were to return to China.
The Delegate’s decision
On 19 July 2010, the Applicant attended an interview with the Delegate.
On 24 November 2010, 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 Delegate found that several aspects of the Applicant’s claims lacked credibility and was of the opinion that the claims had been fabricated.
The Tribunal’s review and decision
On 23 August 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided further documents in support of his review application.
On 2 September 2010, the Tribunal wrote to the Applicant informing him 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 7 October 2010 to give oral evidence and present arguments.
On 7 October 2010, the Applicant attended the Tribunal hearing and gave evidence.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“11. In a decision dated 24 November 2010 the Tribunal Member affirmed the delegate’s decision not to grant a protection visa to the applicant.
12. The Tribunal did not find the applicant to be a witness of credit and did not accept the applicant was an underground Catholic Church member in China. The Tribunal did not accept that the police issued a summons for the applicant in February 2010 for the reasons he claimed, because of inconsistent or incredible evidence that the applicant had given to the Tribunal. This included the following:
a) The Tribunal’s finding that the applicant’s claims that workers left the rented room after the police went to that residence and found religious material was inconsistent with the applicant’s claim that the local police treated underground Catholics harshly.
b) The Tribunals’ finding that the applicant failure to account for why the police visited the workers, why the police searched the room and why the police would have linked any religious material to an underground church, or why the police would have linked the religious materials to the applicant and immediately issued the summons for his arrest.
13. The Tribunal accepted the possibility that the applicant would be fined or detained for leaving China using a false passport, however, given country information available to the Tribunal, did not accept that that law was discriminatory in its intent or that it would be imposed in a discriminatory manner in the applicant’s case.
14. The Tribunal was not satisfied that the photograph alleged to be of the applicant’s baptism is in fact the applicant being baptised in 1994. In regard to the baptism certificate the Tribunal cited country information that indicated widespread document fraud in China and that documents from China are of little probative value. It found that because document fraud was widespread and that the applicant lacked credibility, it did not accept the baptism certificate presented by the applicant to be an authentic document and gave it no weight.
15. The Tribunal also found that the applicant had devoted time and energy to participate in Catholicism in Australia in order to strengthen his claim for protection. It did not accept the applicant was a practicing Catholic in China and it was not satisfied the applicant had attended the Catholic Church in Australia otherwise than for the purpose of strengthening his refugee claims. The Tribunal disregarded his conduct while in Australia under s91R(3) of the Act.
16. The Tribunal found the applicant was not a person to whom Australia owed protection under the Act.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 2 February 2011, the Applicant attended a directions hearing before me. The Applicant confirmed that he 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 commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The Applicant confirmed that he relied on the grounds contained in the application filed on 17 December 2010 as follows:
“1. RRT wrongly applied S91R(3) to case because it had bias against me and didn’t believe me to be a Roman Catholic.
2. RRT didn’t properly consider support letters and photos which had submitted in support of my claims for protection.
3. The Tribunal failed to consider my claims properly and fairly and failed to comply with S424A of the Act.”
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.
Grounds 1 and 2
Grounds 1 and 2 were unsupported by particulars, evidence or written submissions. In oral submissions, the Applicant said that if the Tribunal had questions about his baptism certificate the Tribunal should have “checked the facts” rather than find that the baptism certificate was not genuine. The Applicant said that the Tribunal had not realised how important its decision was to him and that the baptism certificate was genuine. The Applicant stated that he had been a Roman Catholic in China and persecuted as a result. The Applicant made the same submissions in relation to Grounds 1 and 2.
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
To the extent that the Applicant was asserting that the Tribunal should have investigated the authenticity of the Applicant’s baptismal certificate further, there is no such obligation on the Tribunal. (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment). The Tribunal put clearly to the Applicant its concerns regarding the certificate, including the country information before it that document fraud was prevalent in the Fujian Province.
The Tribunal’s decision record makes clear that the Tribunal accurately summarised the Applicant’s written claims and considered in some detail the further information given by the Applicant at the Department interview with the Delegate. At the Tribunal hearing, the Tribunal noted that the Applicant was represented by his registered migration agent. The Tribunal explored the Applicant’s claims with him in substantial detail and put to the Applicant the concerns it had about his evidence and noted the Applicant’s responses. In particular, the Tribunal explored with the Applicant his alleged baptism at the age of 10 and a photograph provided by the Applicant in support. The Tribunal put to the Applicant the concerns it had about the photograph and its further concerns that the Applicant’s family sent him the photograph of his baptism prior to sending the baptism certificate. The Tribunal noted the Applicant’s response that his family told him that the priest was too busy and did not have time to prepare the certificate. The Tribunal noted that the priest only signed the certificate in May 2010 but the Applicant did not receive it until a few days after he was interviewed by the Department. The Tribunal noted that the Delegate had asked him about his baptism certificate and he had said he had such a certificate and his family were sending it. The Tribunal also put to the Applicant that his baptism certificate indicated that “Joseph” was the name that he had taken when confirmed where as at confirmation a person usually takes a saint’s name which is different to their baptismal name. The Tribunal noted the Applicant’s response that he was allowed to take the same name.
While the Tribunal clearly considered the Applicant’s photograph and certificate of his alleged baptism in 1994, having regard to its comprehensive adverse credibility findings, the Tribunal was not prepared to accept the Applicant’s assertion that the photograph was of the Applicant being baptised in a house church in China.
The Tribunal also had regard to country information before it that indicated that there is widespread document fraud in China and, accordingly, placed no weight on the Applicant’s baptism certificate as an authentic document. The Tribunal noted that it put to the Applicant that there is a long history of people from the Fujian Province from where the Applicant comes using fraudulent documents to leave the province in order to go to other countries for economic benefit. The Tribunal noted the Applicant’s response that this was not so in his case and that he did not know about such a thing.
In the circumstances, the Tribunal considered the Applicant’s documents in some detail but was not ultimately satisfied of their authenticity for the reasons expressed by the Tribunal to the Applicant and in light of the Applicant’s unsatisfactory responses, coupled with the Tribunal’s adverse credibility findings.
Ultimately, the Tribunal comprehensively rejected the Applicant’s claims as truthful and found them to have been fabricated.
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 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).
Similarly the country information to which the Tribunal had regard and the weight it gave to such information is a matter for the Tribunal. (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]).
To the extent that ground 1 alleges bias by the Tribunal against the Applicant, such a claim is serious. The allegation was unsupported by particulars, evidence or relevant submissions. 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]).
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 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) 179 ALR 425 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.
The Applicant’s complaints about the Tribunal’s findings in relation to the Applicant’s conduct in Australia in attending a Catholic Church in Flemington are no more that a disagreement with those findings. Such complaints invite merits review, which this Court can not 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).
Otherwise, the Tribunal accepted that the Applicant has attended a Catholic Church at Flemington since his arrival in Australia. However, the Tribunal was not satisfied that the Applicant had attended the Catholic Church at Flemington otherwise than for the purpose of strengthening his claims to be a refugee. In the circumstances, the Tribunal correctly disregarded that conduct in considering whether or not the Applicant had a well founded fear of persecution for a Convention related reason and, thereby, complied with s.91R(3) of the Act (see Minister for Immigration and Citizenship v SZGJV (2009) 238 CLR 642).
Accordingly grounds 1 and 2 are not made out.
Ground 3
Ground 3 asserts that the Tribunal did not consider his claims “properly and fairly” and failed to comply with s.424A of the Act.
Ground 3 was not supported by particulars, evidence or written submissions. In oral submissions, the Applicant stated that he did not get a proper and fair decision. He said that lots of questions were not raised in front of him. He said that the Tribunal made no comment and he thought that the Tribunal had no questions.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 2 February 2011 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant 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.
A fair reading of the Tribunal’s decision record makes quite clear that the Tribunal put to the Applicant in some detail the concerns it had about his evidence and noted his responses. It is well established that the Tribunal was not required to put to the Applicant its subjective appraisals and thought processes in relation to the evidence before it. Those matters are not information that enliven any obligation under s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).
Moreover, following the Delegate’s decision, the Applicant was on notice that the whole of his claims lacked credibility having regard to the Delegate’s finding that he had fabricated his claims. In those circumstances, the Applicant was on notice that his credibility remained an issue on the review before the Tribunal. Both the Delegate’s decision and the Tribunal’s exchanges with the Applicant during the hearing were sufficient to indicate to the Applicant that everything he said in support of his application was in issue arising in relation to the decision under the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47]).
To the extent that Ground 3 alleges a failure to comply with s.424A of the Act, there was no information that enlivened any obligation under s.424A of the Act. The information to which the Tribunal had regard in making its findings and reaching its conclusions was information given by the Applicant to the Tribunal for the purposes of its review and was therefore information excluded from the obligations under s.424A(1) of the Act by reason of s.424A(3)(b) and s.424A(3)(ba) of the Act. The only other information to which the Tribunal had regard was information that was not about the Applicant in particular but was about a class of persons of which the Applicant claimed to be a member. Again, such information is excluded from the obligations under s.424A(1) of the Act by reason of s.424A(3)(a).
The Applicant’s bare assertion in ground 3 that the Tribunal failed to consider his claims properly or fairly is not made out on a fair reading of the Tribunal’s decision record.
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 his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. 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.
Accordingly, ground 3 is not made out.
Conclusion
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-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 12 April 2011
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