SZQBZ v Minister for Immigration
[2011] FMCA 470
•8 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQBZ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 470 |
| MIGRATION – Review of RRT decision – Migration Act s.420 – whether breach of s.420 constitutes jurisdictional error – merits review – bias – whether delay between Tribunal hearings on its own constitutes jurisdictional error – application dismissed. |
| Migration Act 1958, s.420 |
| Minister for Immigration & Multicultural Affairs & Eshetu (1999) 197 CLR 611 MZXLD v Minister for Immigration& Anor [2009] HCATrans 282 |
| Applicant: | SZQBZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 571 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 June 2011 |
| Date of Last Submission: | 8 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2011 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 571 of 2011
| SZQBZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia as the holder of a student visa on 18 November 2006. On 16 November 2009, after being reported to immigration authorities, he applied for a protection (Class XA) visa. On 17 March 2010 a delegate of the Minister refused to grant such a visa and on 15 April 2010 the applicant applied for review of that decision from the Refugee Review Tribunal. The applicant appeared before the Tribunal on two occasions, the first was on 18 June in 2010. At the end of the hearing the applicant's representative requested that the Tribunal allow it to submit further information which he did on 22 June 2010. For reasons which are not explained by the Tribunal, a further hearing took place on 7 February 2011 prior to which some further information appears to have been provided, although it is not entirely clear [72] [CB 185] whether the information came from the applicant or from independent country information provided by the Tribunal. In any event, following that hearing, the Tribunal came to its conclusions which were to affirm the decision under review on 25 February 2011. It handed that decision down on 28 February.
The convention ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of religion. The applicant claimed to be a Christian from the Fujian province of South China. It is not necessary to set out at any length in this decision the very detailed recitation of the applicant's claims and the Tribunal's questioning of him because, notwithstanding that questioning, the Tribunal accepted very much of the applicant's evidence. The Tribunal accepted that the applicant and his mother were introduced to Christianity, his mother in 2001 and he in 2003, and that the applicant had what he believed to be a religious experience when he was cured of a serious illness following a heavenly intercession induced by his mother's prayers. It accepted that the applicant was questioned by police in March 2005 and his family was warned about his continued attendance at the local church to which his mother had introduced him.
The Tribunal accepted that although the applicant attended that church, notwithstanding the warnings, nothing had happened to him before he left for Australia. It accepted that the applicant's mother was arrested and detained in China in 2006 and 2007 for attending unregistered house churches and that his father was questioned in 2006 and was detained in 2007 because of his mother's attendance. The Tribunal accepted that the applicant's parents were divorced following their detention in 2007 and the cancellation of his father's business licence. The Tribunal accepted that the applicant attended some house church gatherings before he departed for Australia and that he has regularly attended the Christian Assembly of Sydney Church in Lidcombe since arriving in Australia.
“[101]He demonstrated a genuine commitment to his religion and the Tribunal accepts he has attended church in Australia for reasons other than strengthening his claim to be a refugee. The Tribunal accepts that the applicant would prefer to attend unregistered church gatherings in China and accepts that he intends to continue to do so in the future, if he returns to China.”
The Tribunal determined that the applicant was not a person who fitted within the Convention definition of a refugee because it could not accept that there was a real chance that he would suffer persecution on the grounds of his religion in the reasonably foreseeable future in China should he return there. The Tribunal gave four grounds for coming to that conclusion. The first was that the applicant had not come to the notice of authorities apart from having been questioned in 2005 although he continued to attend the unregistered church. He was not arrested or detained before coming to Australia. The second reason was that although his mother had been arrested in the past the Tribunal accepted the applicant's evidence that nothing had happened to her since 2007. The third reason was that country information relating to the attitude of the authorities in the Fujian province indicated that attendance at unregistered Protestant Churches has seldom involved an attendee in serious problems with the authorities. It is fair to say that the applicant had provided the Tribunal with evidence of the arrest and detention of church activists in Fujian and the Tribunal took this into account.
“[106]Exceptions to this more liberal policy in the province appear to be for those groups banned as cults by the Chinese government, those groups with a large number of attendees, and which arrange for regular use of facilities for religious activities, and those groups with links to other unregistered groups and to overseas co-religionists. These include the underground Catholic Church as indicated by the articles the applicant has submitted about the arrest of a Catholic priest in the province. None of these characteristics are applicable to the underground Protestant Family Church the applicant claimed he attended.”
The Tribunal also considered the applicant's response to this piece of country information, namely, that reports of intervention in low level small scale churches was frequently not reported. But the Tribunal did not accept that response saying:
“[107]Whilst the Tribunal accepts that not every incident may be reported, the Tribunal is of the view that there is widespread reporting of incidents as indicated by the report from the China Aid Association in October 2010. The Tribunal also notes that although the applicant's mother has continued to attend unregistered house church gatherings she has not indicated that she has come to the attention of the authorities since 2007, which is consistent with the available country information about the situation in Fujian province for those who attend unregistered house church gatherings.”
The fourth reason that the Tribunal gave related to the delay in making an application for a protection visa by the applicant. The applicant came to Australia originally on a student visa in 2006. He tells that within a few months he was unable to continue with his course because he was no longer being supported by his parents as a result of the arrest and detention that they suffered and which has been discussed above. He left the course and started to work hoping that he would make enough money to permit him to continue studying. This did not occur.
Notwithstanding that his student visa was in all probability no longer active he remained in the country without applying for a protection visa. This was a matter that the Tribunal raised with the applicant on both occasions at hearing. The applicant first told it that he thought he was fine whilst he had his student visa and he thought that he could continue to work and hold his student visa even though he was no longer attending classes:
“[109]However, he confirmed to the Tribunal that he was aware that he could make a protection visa application in 2008, about one year after he could no longer fund his studies. He said he did not make an application for a protection visa at this stage or when his student visa expired because he was scared he would be sent back to China if his application was not successful. The Tribunal does not accept this explanation. In the Tribunal's view, it is inconsistent with the applicant's claims that his mother arranged for him to come to Australia so he could study and have religious freedom. It is inconsistent with his claims that his parents were detained in 2007, resulting in his father's business licence being cancelled, his parents divorcing and them not being able to fund his studies. The Tribunal notes that the applicant only made his application for a protection visa when he was intercepted by the police in November 2009. The applicant said his ‘comfort zone’ had caused the delay. In the Tribunal's view the significant delay in lodging the application is not consistent with the applicant's claimed fear of persecution.
[110]Not making his protection visa application for almost four years after arriving in Australia indicates that the applicant was not in genuine fear of being persecuted should he return to China.”
On 29 March 2011 the applicant applied for review of the decision of the Tribunal in this court. The grounds of application were threefold. The first was:
‘The Tribunal contravened s420(1) of the Migration Act because it had not acted in a just manner for the assessments of my claims fairly.”
Section 420 of the Act is in the following form:
“Refugee Review Tribunal's way of operating
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.”
It is now well established that a breach of s.420 of the Migration Act 1958 (the “Act”), even if proved, would not constitute jurisdictional error on the part of the second respondent; Minister for Immigration & Multicultural Affairs & Eshetu (1999) 197 CLR 611. And this view was reiterated by Crennan J in MZXLD v Minister for Immigration& Anor [2009] HCATrans 282. However, the applicant also alleges unfairness in the actions of the Tribunal, which might in some circumstances amount to jurisdictional error, but this court could not find such in the absence of any particularisation.
The second ground is that:
“The Tribunal contravened s420(1) of the Migration Act as it did not assess my fear as a unique individual claim but it applied generic universal view for its decision to refuse.”
Again insofar as this complaint relates to s.420 I cannot make a finding that it constitutes jurisdictional error. However, there could be other bases upon which jurisdictional error is claimed constituted in the ground, regrettably these are not particularised. The nearest one might get to it is the suggestion that the Tribunal acted on the basis of independent country information and preferred that to the specific evidence that the applicant provided. However, the Tribunal is entitled, indeed required, to weigh up conflicting country information and come to a conclusion as to which it prefers. There is no jurisdictional error in preferring one over the other.
The third ground of application was:
“I was deprived the natural justice because the Tribunal had been influenced to form a prejudiced and biased view against my claims just because I had not applied earlier.”
This goes to the delay in making the application for a protection visa. I have set out in some detail the Tribunal's findings on this matter and I note from the helpful written submissions of Mr Temby that the promptness of the applicant's application for a protection visa after having arrived in Australia was a consideration to which the Tribunal was entitled to have regard. The Tribunal was aware of the relevant law on the subject because it quoted a statement from Selvadurai v Minister for Immigration & Anor (1994) 34 ALD 347 at [108] [CB 195]. I am quite satisfied that the Tribunal has not misapplied the law in this regard.
Just prior to today's hearing the applicant provided the court with a written document presumably prepared by a friend. The document sets out his submissions and also puts forward certain further evidence which the court has explained to the applicant it was unable to deal with because assessment of the merits of the applicant's claim is for the Tribunal alone and not for this court. The only point that the court could consider that was made in these submissions is the action of the Tribunal in holding two hearings some months apart. The applicant said in this regard:
“Therefore, I say the Tribunal has not complied with the requirements as stated in the Migration Act timely and justly to assess my application. During the second hearing, the Tribunal did not ask any new questions but to repeat the question which I have been asked and addressed during and after the first hearing. Therefore, I say that the Tribunal should have enough time and material to refuse my application without the need of conducting a second hearing if it had acted fairly and justly and in accordance with the laws.”
The court is given no clue as to why the Tribunal acted in the way it did. Mr Temby suggested it was because of the provision of additional evidence. But as I read the court book the additional evidence was provided after the first hearing. And the more I look at the additional evidence referred to by the Tribunal in its section on the second hearing the more I come to the view that it was the Tribunal's own information. In any event it talks at length about a document that was reported in October 2010 some months before the hearing.
As strange as the situation might be, and as disturbing to the applicant, I cannot see in it the constituents of jurisdictional error. It would not be right for the court to hazard a guess as to why this occurred. But there can be no doubt that the applicant was well provided with opportunities to give evidence and present arguments relating to the issues arising in his case. That is what the Act requires and as that was what was done I am unable to provide the applicant with the relief he seeks on the grounds set out. Whilst it is possible that another Tribunal may have taken a more sanguine view of the applicant's delay in filing the application for a protection visa, that was only one of the four reasons the Tribunal gave for coming to a conclusion that he did not have a well founded fear of persecution. In all the circumstances the decision must be upheld. The application must be dismissed and the Applicant must pay the First Respondent's costs which I assess in the sum of $3,750.00.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 22 June 2011
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