SZQAJ v Minister for Immigration
[2011] FMCA 468
•30 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQAJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 468 |
| 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 it considered the case unfairly and was biased or lacked good faith, denied the applicant procedural fairness, did not consider the applicant’s claim, did not treat the application seriously, gave too much weight to certain information and erred by failing to be satisfied that the applicant was entitled to a protection visa. |
| Migration Act 1958, ss.422B, 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 |
| Applicant: | SZQAJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 451 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 7 June 2011 |
| Date of Last Submission: | 7 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 451 of 2011
| SZQAJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of China where, she claims, she was a member of an unofficial “family church”. She claims that she was detained by the Chinese authorities and forced to attend “education classes” as a result of her practice of Christianity. She also claims that she was fined by the authorities for multiple breaches of the one child policy.
The applicant claims to fear persecution in China because of her religion and because of her breaches of the one child policy.
After her arrival in Australia on 10 October 2007, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 27 September 2010. The applicant then applied to the second respondent (“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’s 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 – 16 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement attached to her protection visa application:
a)she started attending a family church in her village at the age of sixteen and was baptised in January 1985;
b)because the Chinese government did not allow them to practise Christianity, they were forced to change their gathering venues from time to time. Even so, the police had ways of finding them and she received many warnings from the local government and the police. On a number of occasions she was “almost” arrested and sent to prison;
c)as a Christian she did not believe in abortion and had four children despite the one child policy in China. She was fined a total of 35,000 RMB;
d)on 13 March 2005 the police interrupted one of their church gatherings. The gathering was being held at the home of a “Ms Y” who, as a penalty, was detained for six months. The applicant was detained for seven days;
e)she came to Australia to look after her daughter who was here as a student. She attended a Chinese Congregational Church in Australia and sent some materials on Christianity to Ms Y in China; and
f)her sister advised her in May 2010 that Ms Y had been arrested and sentenced to one year in prison for collaborating with illegal overseas organisations. Her sister advised her that the police had identified her, the applicant, as the person who had sent Ms Y the materials and also that the village committee had been instructed to report to the police as soon as she returned.
The applicant appeared before the Tribunal 8 December 2010 and made the following additional claims:
a)she and other members of her church received several warnings from the police in relation to their practice of Christianity, which they ignored. Consequently, on 24 January 1988 the police took them away and forced them to attend “education classes”. They were told about atheism and socialism and were not allowed to go home for one week;
b)on 25 June 1996 she and other members of her church were arrested during a church meeting. They were forced to attend education classes “exactly like the last time”, however, the applicant was only detained for five days as she was due to give birth to her son;
c)she was taken away on 23 July 2006 and forced to attend another week-long “brainwash education”. The education classes were held in a school during the school holidays;
d)the applicant stated that her children had not been present during the 1996 incident because they were attending school as they had needed supplementary classes during the school holidays;
e)she had not previously mentioned the education classes because they “were not like detention” and, at the departmental interview, she had not been asked;
f)she came to Australia on a student guardian visa with her second daughter. Her eldest daughter later joined them in Australia and she has since made her own application for a protection visa;
g)her eldest daughter was placed in immigration detention for about four months and, because she was young and scared, fabricated some stories “to get herself out quickly”. This accounted for the inconsistencies in their evidence (as provided during their respective Tribunal hearings);
h)contrary to the allegations made by her eldest daughter, her husband had not been present during the incident at Ms Y’s house in March 2005 because, by that time, they were already divorced;
i)when the police discovered that she had sent religious materials to Ms Y in China, they issued a summons requiring her to report to the police station. She did not provide this document to the department because she had not known to present it; and
j)the fines which she incurred as a result of her breaches of the one child policy had all been paid in 1996.
The applicant provided the Tribunal with a number of documents including, amongst other things, a “summons notice” dated 29 April 2010 requiring her attendance at the Fuqing Public Security Bureau for interrogation, a document headed “Fuqing Public Security Bureau Public Security Administrative Punishment Decision” dated 13 March 2005, “testimonials” from fellow practitioners in China confirming that she had been persecuted by the government and statements from various individuals in Australia attesting to her involvement in the Chinese Congregational Church.
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’s decision was based on the following findings and reasons:
a)during its hearing the Tribunal found aspects of the applicant’s evidence to be unreliable and lacking credibility which led it to conclude that certain aspects of her evidence should not be accepted. It stated that her account of particular events was sometimes vague and lacking in detail and at times she appeared to be adjusting her evidence to the questions the Tribunal asked. Further, given the inconsistencies between the applicant’s evidence and that of her daughter, it had serious concerns about the credibility of her claim to have been detained for seven days in March 2005;
b)the Tribunal was not satisfied that the applicant had been detained for several days at compulsory re-education classes in June 1996 or on any other occasion, noting that:
i)she did not make these claims at the departmental interview stating, by way of explanation at the Tribunal hearing, that the classes were “not like detention” and nobody had asked her. However, in the Tribunal’s view, the events described by the applicant were difficult to distinguish from detention;
ii)the Tribunal accepted that the applicant referred to “brainwashing classes” in the statement provided with her protection visa application but did not consider it to be a description of the events in question;
iii)in the Tribunal’s view, if the applicant had been detained on three separate occasions in the manner described, she would have mentioned these events in the detailed personal statement provided with her visa application; and
iv)her evidence concerning the June 1996 event and whether it had occurred during the school holidays was inconsistent;
c)the applicant claimed that she and her husband were divorced in January 2005 and that, as a consequence, he had not been present during the events of March 2005. However, the applicant’s eldest daughter, in her evidence to the Tribunal in relation to her own application for a protection visa, claimed that both the applicant and her father had been detained for a month as a result of the incident at Ms Y’s house in March 2005. The Tribunal did not accept the applicant’s various explanations for the inconsistency and found that, taken together and considered cumulatively with the Tribunal’s other concerns in relation to the applicant’s claims, it cast considerable doubt on the applicant’s credibility. Consequently, the Tribunal found that the applicant and her daughter had fabricated the events of March 2005 in an attempt to bolster their claims and was not satisfied that the applicant had ever been arrested or detained in China as a result of her Christianity;
d)the Tribunal questioned the provenance of the documents purportedly issued by the Fuqing Public Security Bureau, noting that they were not produced by the applicant until the hearing before the Tribunal. The Tribunal gave the documents little weight and it concluded that their evidentiary value did not outweigh its overall adverse assessment of the applicant’s credibility;
e)the Tribunal accepted that the applicant was a Christian and had been a member of the family church in China since around the time of her baptism in 1985. However, given the serious concerns it had about the applicant’s credibility and the truthfulness of the claims made in her application, the Tribunal was not satisfied that the applicant had been mistreated or harmed in the past on the basis of her religion, that she had posted religious materials to China from Australia or that she was wanted for questioning by the Chinese authorities in relation to those materials. The Tribunal was not satisfied that the applicant was of interest to the Chinese authorities;
f)the Tribunal accepted that the applicant had been a regular worshipper at the Chinese Congregational Church since coming to Australia. However, the Tribunal was not satisfied that this would result in her becoming a person of interest to the Chinese authorities on her return to China; and
g)the Tribunal also accepted that the applicant had incurred significant fines as a result of her breaches of the one child policy but found, given that she had paid those fines in 1996, that such harm as she may have suffered was confined to the past. In any event, even if further discriminatory conduct were to occur in the future, the Tribunal was not satisfied on the evidence before it that it would be serious enough to constitute persecution for the purposes of the Convention.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.RRT considered my case unfairly. They doubt my claim without substantive evidence.
2.Procedural Fairness has been denied by RRT.
3. RRT did not consider my situation in China. I will be put in jail if I go back.
In her affidavit filed with her application commencing these proceedings the applicant also alleged:
1. RRT did treat my application seriously. I provided a supporting letter from the church I attend in Australia. But the member even spelt the contact person’s name wrongly while asking me to respond to some information on 14th January 2011.
2.RRT member did process my supporting documents. When responding to the incident happened in March 2005, my daughter and I gave inconsistent answers. My daughter applied for protection visa before and was refused by RRT. Just because our answers were not the same, the RRT member thought we both had lied. Why isn’t it possible that my daughter made a wrong statement about that? What is the legal ground to make the conclusion?
3.RRT member accepted that I am a Christian. I attended underground church in China, which was objected and suppressed by Chinese government. Who can guarantee my safety if I go back to china? In addition, as my knowledge, many people who have similar situation as me received protection from Australian government.
Case considered unfairly
The essence of the first allegation made in the application is that, without substantive evidence, the Tribunal nevertheless affirmed the delegate’s decision. This suggests that the Tribunal did not conduct the review in good faith and was willing to reach a conclusion adverse to the applicant notwithstanding that it had an inadequate basis to do this. This, in turn, implies that the Tribunal was biased or conducted the review in bad faith. The applicant adduced no evidence in support of such implied assertions, the only evidence before the Court touching on these matters being what is contained in the Court Book which is exhibit A and, in particular, in the Tribunal’s decision which is reproduced in it. That evidence does not support a conclusion that the Tribunal conducted the review with a state of mind so committed to a conclusion already formed that it was incapable of altering that conclusion, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Rather, the Tribunal’s decision record indicates a review conducted with an open mind demonstrating a genuine consideration of the application and a logical assessment of the evidence.
In SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 the Full Court of the Federal Court set out a number of propositions relevant to consider when determining whether a tribunal decision represents a bona fide attempt to exercise the power of review. Those propositions were:
·an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker;
·the allegation is not to be lightly made and must be clearly alleged and proved;
·the presence or absence of honesty will often be crucial;
·the circumstances in which the Court will find an administrative decision-maker has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review;
·mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism; and
·errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
The evidence does not support a conclusion that any of the circumstances discussed in SBBS were present in this case. The Tribunal’s decision record discloses a conscientious approach to the review initiated by the applicant and does not support a finding of a want of good faith, or bad faith as Gyles J put it in NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at 217 [16].
Denial of procedural fairness
The applicant has not identified in what way the Tribunal is said to have denied her procedural fairness. To the extent that the applicant may allege a breach of the bias rule by reason of actual bias on the Tribunal’s part, this has been dealt with in relation to the first ground of the application. Should she be alleging apprehended bias, in the absence of any evidence other than what is contained in the Court Book, I am not satisfied that there is a basis to conclude that a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the manner in which the Tribunal conducted its review might reasonably apprehend that the Tribunal might not have been bringing an impartial and unprejudiced mind to that review: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
To the extent that the applicant alleges a breach of the natural justice hearing rule, such obligations as the Tribunal had in this connection are codified by s.422B of the Act in those provisions found in div.4 of pt.7 of the Act. The most important of those provisions are ss.424A, 424AA and 425. As far as the Tribunal’s obligations under s.424A are concerned, the Tribunal discharged them by, at its hearing and pursuant to s.424AA, giving the applicant oral notification of information which it considered would be the reason or a part of the reason for affirming the decision under review, namely, the inconsistencies between the evidence of the applicant and that of her daughter. The other information upon which it based its decision was material which the applicant supplied in writing to the Minister’s department or to the Tribunal for the purposes of its review or was independent country information which the Tribunal obtained itself. Such information falls with the s.424A(3) exceptions to the Tribunal’s notification obligations under s.424A(1).
On 14 January 2011 the Tribunal also wrote to the applicant pursuant to s.424A advising her of the difficulties which it had had in making contact with the clergy of the church she said she attended in Australia and the applicant responded to that notice. The information the subject of that exchange was not a part of the reason for the Tribunal affirming the delegate’s decision.
Tribunal did not consider applicant’s fear of persecution
The third allegation in the application, that the Tribunal did not consider the applicant’s situation in China and her claim that she would be gaoled were she to return, was the very essence of the Tribunal’s consideration. Far from ignoring the applicant’s claim to have a well-founded fear of persecution for a Convention reason were she to return to China, the Tribunal considered her various allegations in detail but was not satisfied that she did, in fact, have such a fear.
Tribunal did not treat the applicant’s application seriously
The first allegation made in the applicant’s affidavit of 14 March 2011 alleges that typographical errors in the Tribunal’s correspondence showed an apparent lack of care and that this demonstrated that the Tribunal failed to take the application seriously. A small error of that sort diminishes into insignificance when considered against the detail found in the Tribunal’s decision record. Not only did the Tribunal set out the applicant’s claims made at various stages of the applicant’s dealings with the Minister’s department and the Tribunal, it undertook a close consideration of those allegations in that part of its decision under the heading “Findings and Reasons”. Far from not taking the applicant’s claims seriously, I am satisfied that it did, as stated above at [15], conduct a conscientious review.
Inconsistencies between the applicant’s evidence and that of her daughter
The second allegation made in the applicant’s affidavit appears to suggest that the inconsistencies in the evidence of the applicant and her daughter should have been of less significance to the Tribunal than the information contained in the documents which she submitted in support of her review application. This ground asserts that the Tribunal should have given more weight to the documents than to the inconsistencies. However, the weight which the Tribunal gives to any aspect of the evidence is a matter for it and, absent exceptional circumstances which are not present in this case, the Court cannot question the Tribunal’s decision on such matters. For that reason, this allegation does not point to a basis on which the Tribunal’s decision might be set aside.
Applicant was persecuted in China
The third allegation made in the applicant’s affidavit is to the effect that the applicant is deserving of protection and that the Tribunal erred by failing to be satisfied that she did. The Court is not empowered to substitute its view of the merits of the applicant’s case for that of the Tribunal. Consequently, this ground discloses no basis upon which the Tribunal’s decision might be set aside.
Further matters
At the hearing in these proceedings the applicant submitted that she had not provided the PSB summons to the department during the visa application process because the departmental interpreter had told her not to. The Tribunal’s decision record indicates that the applicant did not make such an allegation to it by way of explanation of her failure to produce the document earlier than at the Tribunal hearing. In para.94 of its decision the Tribunal records:
In response to the Tribunal’s question at hearing as to why the document was not provided earlier, the applicant stated that she had it with her at her interview with the Department, but that she did not know to present it.
For this reason, this particular assertion made by the applicant in her oral submissions does not disclose jurisdictional error on the Tribunal’s part.
The applicant further submitted that when she was before the Ministerial delegate she only answered the questions which she was asked and appears to have implied some error on the Tribunal’s part in relying on the inconsistencies between her evidence at the Tribunal hearing and what she had said to the delegate. However, these differences were canvassed by the Tribunal at paras.88-89 of its decision where it recorded that it had discussed these discrepancies with the applicant who had explained that she had not mentioned certain things to the delegate because she was not asked. Plainly, the issue was canvassed before the Tribunal and considered by it, with the result that no error is disclosed on the basis asserted by the applicant at the hearing in these proceedings.
The applicant also submitted that the Tribunal was wrong to place weight on the inconsistencies between her evidence and that of her daughter but, as observed earlier in these reasons, the Tribunal is entitled to weigh the evidence before it in the manner which seems to it to be most appropriate. This assertion does not disclose error on the Tribunal’s part.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated
Consequently, the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 30 June 2011
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