SZOYO v Minister for Immigration
[2011] FMCA 521
•24 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOYO v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 521 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R(3), 412, 414A, 424AA Migration Regulations 1994 (Cth), reg.4.31 |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 |
| Applicant: | SZOYO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 110 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 24 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 110 of 2011
| SZOYO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 23 December 2010. The Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of China, arrived in Australia in March 2009. On 7 October 2010, while in detention, he applied for a protection visa. He attended an interview on 13 October 2010.
The delegate decided to refuse to grant the visa on 18 October 2010. The applicant sought review by the Tribunal by application lodged on 22 October 2010. He was invited to and attended a Tribunal hearing.
The applicant’s claim for protection was said to be based on his fear of persecution in China on the basis of his religion. In a statement attached to his protection visa application the applicant, who was born in 1988, claimed that he belonged to an underground Christian Church linked to Taiwan that his father had been involved in for some 15 years. He claimed that he “started attending meeting at this underground church with his father when he was about 18 or 19” and that “he handed out leaflets about the church to members of his village”. He claimed he received threats from people in the village. The applicant claimed that after he came to Australia he started attending a church at Rockdale.
At the time of his protection visa application the applicant claimed that if he returned to China he would be in physical danger from people in the community and that he could not get protection from the authorities.
The Tribunal set out the claims made by the applicant in connection with his protection visa application and his elaboration of those claims at a Departmental interview. It also set out what occurred at the Tribunal hearing attended by the applicant on 13 December 2010, including issues raised by the Tribunal with the applicant generally and under s.424AA of the Migration Act 1958 (Cth) (“the Act”) and the applicant’s responses to the Tribunal concerns.
The Tribunal also referred to evidence given by the applicant’s brother and the submissions of the applicant’s migration agent.
In particular, it recorded that at the hearing the applicant had elaborated on a claim that two or three times between January and June 2008 the police confiscated brochures he was distributing and that on each occasion the police let him go and did not arrest or detain him, notwithstanding that on one occasion he got into a verbal argument with the police and pushed them.
In its findings and reasons, the Tribunal accepted that the applicant was a national of China. However, it did not accept that the applicant was a witness of truth.
It summarised the applicant’s claims that he would be persecuted as a practising Christian who attended an underground church in China with links to Taiwan that his parents had started attending in the 1990s. He claimed that his father had been stabbed because of his involvement in the Church. His parents had taught him about Christian beliefs at home. When he was 18 or 19 he started attending the underground church and distributing leaflets on the street about Christianity and the church. He claimed that he was insulted and beaten two or three times by other villagers for distributing leaflets, that he was beaten several times at school because of his religious beliefs and that his family had received threats because of their religious beliefs. He claimed that the police twice tried to prevent him from distributing religious materials and that he argued with them and pushed them. He claimed that the village head asked him to attend a registered church.
The Tribunal recorded that the applicant claimed to fear that he would not be able to practise his religious beliefs freely, that he feared harm from other villagers, the mass public and the authorities, and that the police would not protect him but may arrest and detain him if his activities were discovered.
The Tribunal gave detailed reasons for its adverse credibility findings, in the course of which it addressed the explanations given by the applicant for issues of concern. The Tribunal found that, notwithstanding the applicant’s claims about growing up in a Christian household and having been taught about Christianity by his parents, he was only able to provide very limited responses when asked about what his parents had taught him. The Tribunal was of the view that if, as was claimed by the applicant, he had grown up in a Christian household since he was seven, he would have been able to describe in more detail some of the things his parents had taught him about Christianity.
The Tribunal found the applicant had given vague and inconsistent evidence about whether or not his parents held underground church meetings at their home before 2008. It set this evidence out in detail. It considered, but did not accept, the applicant’s explanation for his lack of knowledge: that he was young and that his parents did not tell him about religious gatherings. The Tribunal was of the view that if his parents regularly held religious gatherings at their home the applicant would have been aware that some kind of meetings were held, even if he was not aware of their precise nature.
The Tribunal also found that the applicant’s evidence as to what it meant to him to be a Christian was vague and superficial. While it accepted that the applicant could explain some aspects of Christianity, the Tribunal did not accept that this evidence, in itself, demonstrated that he was a genuine Christian. It had regard to the fact that when asked at the Tribunal hearing what it meant to be a Christian the applicant could only state “confidence” and “to be a person that God agrees with, the standard of being a man, and to work towards this goal” and was unable to explain the Christian understanding of God or what being a Christian meant and how it had an impact on him personally. The Tribunal found that given his claims about attending church on a regular basis since 2008 in China, that his parents were Christians, that he grew up in a Christian household and that he had an active role in the underground church distributing religious material, the applicant would have been able to describe in more detail what it meant to him to be a Christian and the Christian understanding of God. The Tribunal considered the applicant may have recently acquired his understanding of Christianity by attending church in Australia and found his responses did not overcome its “concerns about his lack of demonstrated personal commitment to Christianity and religious conviction”.
These findings led the Tribunal not to accept the applicant’s claim his parents started attending an underground church in the 1990s and taught him about Christian beliefs at home and that he started attending an underground Christian church when he was 18 or 19.
The Tribunal also had regard to the fact that the applicant had first made the claim that on two or three occasions in 2008 the police prevented him from distributing religious material on the streets at the Tribunal hearing. The Tribunal did not accept the applicant’s claim that he “felt tense” as an explanation for his failure to mention these claims in his protection visa application. The Tribunal was of the view that he “would have been able to remember such a significant event as to when he had a confrontation with the police, given that it forms a critical part of his claims that he fears persecution”.
It also had regard to the fact that, notwithstanding the applicant’s claims that he belonged to an illegal religious organisation and that he had at least two confrontations with the police involving verbal arguments and that he pushed them, the police did not take more serious action against him. Having regard to independent country information and the applicant’s own evidence about the strength of his church and their activities the Tribunal did not accept the applicant’s explanation that his church’s attitude was “not so strong”. The Tribunal considered that the authorities would have taken more serious action against the applicant if he had in fact been distributing religious material about an underground church linked to Taiwan.
The Tribunal did not accept the applicant’s claims about his involvement in an underground church in China, distribution of religious materials on the streets, or his claims about physical and verbal abuse from the authorities, other villagers and the “mass public” for distributing such material.
The Tribunal also found that the fact that the applicant only initially attended church for about six months after he came to Australia was inconsistent with his claim that he was a committed Christian who came to Australia in order to freely practise his religious beliefs. While it accepted that in some circumstances a person could be a committed Christian and not attend church on a regular basis, it found the reasons the applicant gave for stopping his attendance at church to be unconvincing and not consistent with his claims. It did not find it plausible that the applicant would have stopped attending church simply because he was unlawful, because they discussed plans for the future at church, or because he did not want to give out his identification if was a committed Christian as claimed.
The Tribunal also had regard to the significant delay between the applicant’s arrival in Australia in March 2009 and his application for a protection visa. It noted that he stopped studying in November 2009, and his student visa ceased in December 2009 but that he did not apply for protection until October 2010, after he was detained. It did not accept his explanation that he would have been returned to China if his application had been refused and found it implausible that, given his awareness that other options for staying in Australia were not open to him, the applicant would not have applied for a protection visa earlier. This cast doubt on his claim he left China because he feared persecution due to his religion.
The Tribunal addressed the fact that the applicant did not mention his claimed fear of harm when he was taken into detention and interviewed. Instead he stated that “there was no reason he could not return to his home country and that he was willing to depart Australia if he had to”. The Tribunal found that even if the applicant did not specifically mention applying for a protection visa, he would have at least mentioned his reluctance to return to China when asked about that issue and that “By itself, this factor may not necessarily cast doubt on the applicant’s credibility. However taken with the Tribunal’s other findings…this information casts doubt on the applicant’s credibility and indicates that the applicant had not experienced religious persecution in China and does not face future harm if he returns to China”.
The Tribunal had regard to the evidence of the applicant’s brother which was broadly consistent with his claims, but noted that the brother was not a direct witness to the events deposed of and only knew of them because the applicant told him about them. Given its concerns about the applicant’s credibility the Tribunal gave less weight to the evidence of his brother, which it found did not overcome its concerns about the applicant’s evidence and its adverse findings regarding his credibility.
The Tribunal did not accept that the applicant was telling the truth about why he could not return to China. It found he was not a credible witness. It did not accept the particular claims he had made about events in China.
The Tribunal accepted that the applicant had attended a church and Christian gatherings in Australia for six months at Rockdale and also after he was taken into detention. It had regard to his claim that he had told the truth and would not say something just to get a visa. However, the Tribunal did not accept the applicant’s evidence in relation to his claimed practice of Christianity and participation in underground church gatherings in China or that he left China because he had a fear of serious harm because of his religion. The Tribunal also found that the applicant was not a credible witness. For these reasons the Tribunal did not accept that the applicant attended church in Australia because he was a genuine committed Christian or that he became a genuine committed Christian after attending church in Australia.
The Tribunal found that the applicant had attended church solely for the purpose of strengthening his claim and that he had not satisfied it that he had engaged in this conduct in Australia otherwise than for the purpose of strengthening his claim. It disregarded that conduct under s.91R(3) of the Act.
The Tribunal also considered whether the applicant would face harm in the reasonable foreseeable future if he returned to China. As it had not accepted that the applicant was a genuine Christian who practised in an underground church in China or that his family did, it did not accept that he had a profile as a person who would practice Christianity in an underground church on return to China. Nor did it accept that the applicant would be perceived as being a Christian who practised in an underground church if he returned to China, either because of his own practice of Christianity or that of his parents.
It did not accept that there was a real chance he would face harm from other villagers, the “mass public”, the village head or the police if he returned to China.
As it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if he returned to China, the Tribunal affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 24 January 2011. The only ground in the application is that the Tribunal “just repeat the reasons that supply the Immigration Department”. In oral submissions the applicant appeared to contend generally that there was a similarity between the reasoning of the delegate and the reasoning of the Tribunal. However it is apparent from a consideration of the delegate’s reasons and the Tribunal reasons that, contrary to any such assertion, the Tribunal conducted a de novo review. Contrary to the applicant’s contention, the Tribunal reasoning adopts a different format and approach and clearly involved the Tribunal in carrying out a review of the application. The general contention of similarity does not establish jurisdictional error. It did not adopt the same reasons as the delegate or fail to consider each integer of the applicant’s claims.
Insofar as it was intended to be contended that there was a lack of procedural fairness, whether arising out of actual or apprehended bias or otherwise, that is not made out on the material before the court.
An allegation of actual bias is a serious allegation. The evidence before the court is not such as to establish actual bias in the sense considered by the High Court in the Minister for Immigration Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17.There is no evidence to support an assertion that the Tribunal approached its function with a mind so firmly closed that, notwithstanding what evidence or arguments were put before it, its predetermined decision would not vary. Nor is there any evidence to support a contention of apprehended bias in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, having regard to the perspective of the hypothetical fair-minded lay person, properly informed as to the nature of Tribunal proceedings, the matters in issue, and the conduct said to give rise to an apprehension of bias.The general submission that there was a similarity between the Tribunal’s decision and the delegate’s decision is not made out. The fact that each decision-maker reached the same conclusion does not establish actual or apprehended bias or a lack of fairness.
The Tribunal’s account of what occurred in the Tribunal hearing indicates that it raised issues of concern with the applicant and gave him an opportunity to address those concerns. It also put matters to him pursuant to s.424AA of the Act. The Tribunal’s account of what occurred in the hearing is not such as to establish either actual or apprehended bias.
At the start of the hearing the applicant sought an adjournment of one or two weeks in order to enable him to put a transcript of the Tribunal hearing before the court, on the basis that he had not been able to do so by the due date because he was in detention at that time and because of the circumstances in detention. He was not, however, able to point to any suggested difficulty in the conduct of the Tribunal hearing or to any inaccuracy or incompleteness in the Tribunal’s detailed account of what occurred at the Tribunal hearing, notwithstanding being given several opportunities to explain the relevance of a transcript and what he intended to rely on in that respect. In the circumstances I found that it was not in the interests of the administration of justice, or of the parties, to grant the adjournment sought.
In submissions in reply the applicant contended generally that he felt that there were some discrepancies in the Tribunal decision and what occurred at the Tribunal hearing and that he was not sure if that was because he did not express himself well enough. These general assertions do not identify or establish any concern about the conduct of the hearing, whether in terms of actual or apprehended bias, compliance with s.425 or s.424AA of the Act or otherwise.
Insofar as the applicant’s concerns amount to a disagreement with the Tribunal’s findings, merits review is not available in this court. As set out above, the Tribunal made adverse credibility findings. Credibility findings are a matter for the decision-maker and the findings that the Tribunal made in that respect were open to it on the material before it for the reasons which it gave. No jurisdictional error is established in that respect. Nor can it be said that the Tribunal’s reasoning or decision was so unreasonable that no reasonable decision-maker could have reached such a view in the manner considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [130] per Crennan and Bell JJ.
The ground asserted in the application for review is not made out.
In the affidavit supporting the original application the applicant also contended that the Tribunal “did not consider fully my case”. He was not able to elaborate on this claim in any meaningful way in oral submissions. There is nothing to suggest that the Tribunal failed to have regard to any integer of the applicant’s claims. Insofar as he contended generally that the Tribunal did not look into his case, this is not a case in which any obligation to enquire has been shown to arise. Nor has it been established that there was a failure on the part of the Tribunal to enquire about a critical fact, the existence of which was easily ascertained (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). This contention is not made out.
In the course of oral submissions the applicant claimed that he was given only seven days to seek review of the delegate’s decision and that others were given 28 days and that this was not fair. He seemed to suggest that in some way he had not been given sufficient time to seek review by the Tribunal. There is no issue about the validity of the Tribunal review application which was accepted by the Tribunal and dealt with on that basis. For the benefit of the applicant I would point out that under s.412 of the Act an application for review has to be given to the Tribunal within the period prescribed. The Act does state that the maximum period prescribed is a period ending not later than 28 days after notification of the decision but, relevantly, reg.4.31 of the Migration Regulations 1994 (Cth) prescribes that in the case of an application given to the Tribunal by or for an applicant in immigration detention (as the applicant was at the relevant time) the period is seven working days beginning on the first working day that occurs on or after the day of notification of the delegate’s decision.
In other cases, that is where the person is not in immigration, the period of 28 days applies.
The notification of the delegate’s decision properly referred to a seven day period and the applicant sought review within that period. There is nothing in these circumstances that establishes jurisdictional error.
Nor is there anything in the time taken by the Tribunal that indicates a lack of procedural fairness, as seemed to be asserted. The applicant sought review on 22 October 2010. He was invited by letter of that date to provide the Tribunal with any further material or written arguments as soon as possible if he wished to do so. He was given more than the minimum notice period in the hearing invitation, being invited on 28 October 2010 to a hearing on 13 December 2010.
He was also given the opportunity to provide further information in the hearing invitation letter. He had the assistance of a migration agent in connection with his review and at the Tribunal hearing.
The Tribunal made its decision on 23 December 2010. I note the provisions of s.414A of the Act.
Insofar as the applicant intended to assert that the Tribunal did not give his claims proper consideration because of the time taken, on the contrary, there is nothing in the circumstances of this case to support any such claim.
As no jurisdictional error has been established, the application must be dismissed. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 7 July 2011
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