SZQCZ v Minister for Immigration

[2011] FMCA 674

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQCZ v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 674

MIGRATION – Review of decision of Refugee Review Tribunal – whether applicant should have been allowed to appear at the Tribunal hearing in person – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 425, 425A, 426A, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568
VDAU v Minister for Immigration and Indigenous Affairs [2005] FCAFC 32
VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212; (2005) 141 FCR 435
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1; (1990) 64 ALJR 327
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190

Applicant: SZQCZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 661 of 2011

Judgment of: Nicholls FM

Hearing date: 29 August 2011

Date of Last Submission: 29 August 2011

Delivered at: Sydney

Delivered on: 7 September 2011

REPRESENTATION

Appearing for the Applicant: In person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 7 April 2011 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,900.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 661 of 2011

SZQCZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 7 April 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 March 2011, which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 23 March 2008 on a student visa (a dependent of her now ex-husband), which was valid until 1 October 2008.
   The applicant was then granted a Bridging visa on 26 September 2008, which ceased on 10 November 2008. On this cessation, she was granted another student visa which was valid until 28 October 2009. The applicant applied for a protection visa on 11 June 2010.

Claims to Protection

1. The applicant’s claims to protection are set out in her protection visa application (Court Book – “CB” – CB 1 to CB 17).

2. The applicant claimed to have practiced Christianity along with her aunt and uncle, with whom she resided since 1992. They all attended a family church (as opposed to an official church) and their residence was used as a regular meeting place for other practicing Christians.

   
   

   On several occasions the police raided the family residence and took away those who were at the home and threatened them (CB 19.5).

3. The applicant claimed that in 1996, while she was being baptised at the family church, the police raided the premises and detained all those who were there. The applicant was released that evening, however her uncle remained in detention for a further two months. The applicant claimed that she, along with other students, was warned not to participate in religious gatherings and, consequently, the applicant was barred from attending senior high school (CB 113.5).

4. In 1999 the applicant claimed that there was another raid by police, where again she was detained for half a day and given a second warning (CB 114.5). After this latter incident the applicant claimed that she reduced her attendance at the family church (CB 113.9). However, she increased her religious practice when she moved to Shanghai (CB 114.2).

5. The applicant claimed that, while she has been in Australia, her family church was raided again and that some worshipers, including one of her family members, were arrested and threatened with imprisonment if they continued to attend the church (CB 19.6).

6. The applicant feared that if she returned to China she would be harassed when she attended the family church as she would refuse to join a “registered” or official church (CB 19.8).

The Delegate

1. The applicant was invited to attend an interview before the delegate on 7 September 2010 (CB 42 to CB 43 and CB 44 to CB 50), which she ultimately attended on 20 September 2010.

2. As the applicant was neither in a position of “influence” within the family church, nor been involved in the distribution of religious material and was able to freely leave China on her own passport, the delegate concluded that she did not have a profile that would attract the adverse interest of the authorities, and therefore was not satisfied that she would face a real chance of “serious harm” in China (CB 69.3 and CB 70.1).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 21 October 2010 (CB 73 to CB 76).

2. She was invited (through her representative) to appear before the Tribunal via video-link on 20 December 2010 (CB 79 to CB 81).

   
   

   (The Tribunal was in Melbourne, the applicant resided in country NSW). On 14 December 2010 the applicant’s representative wrote to the Tribunal requesting an adjournment so that the applicant’s file could be accessed from the Department of Immigration and Citizenship (“the Department”), and also to enable the applicant to travel to Sydney for the hearing (CB 82). On 16 December 2010 the Tribunal wrote to the applicant’s representative inviting the applicant to a new hearing set down for 28 January 2011 (CB 87 to CB 88)

3. On 24 January 2011 the applicant’s representative wrote again to the Tribunal informing it that he had still not received the applicant’s file from the Department, and therefore requested another hearing date on or after 14 February 2011. On 28 January 2011 the Tribunal wrote for a third time to the applicant’s representative inviting the applicant to attend a hearing set down for 15 February 2011 (CB 92 to CB 94).

   
   

   On this date the applicant appeared with her representative via video-link before the Tribunal (CB 95 to CB 97). (The applicant was at the Tribunal offices in Sydney, the Tribunal member was in Melbourne.)

4. On the day of the hearing the Tribunal received a copy of a letter from a church minister at a local Presbyterian church in Port Macquarie to “brothers and sisters in Christ in China” stating that the applicant was a regular attendee at the church (CB 99). After the hearing the applicant’s representative sent to the Tribunal, by facsimile, a response to the country information referred to by the Tribunal at the hearing (CB 102 to CB 103).

5. The Tribunal extracted passages from the “RRT’s Country Advice CHN37779 & CHN34397” ([35] at CB 116 to CB 118) in its decision record. The Tribunal also noted that it had given the applicant’s representative an opportunity to make post-hearing submissions about that country information. The submissions made by the applicant’s representative were included in the Tribunal’s decision record at “Annexure B” (CB 135 to CB 137).

6. Relying on country information, the Tribunal found that within certain parts of China, particularly in Fujian province, house church followers can meet and interact free from harm or threats from authorities (CB 119.7). As the applicant did not indicate that she would take an active role within the church, and as the Tribunal found that she had not been registered or recorded as a “house church follower”, that: “… she would be free to move within China without her participation in house church gathering being reported to the authorities in her new location.” (CB 121.1.) Therefore it concluded that she could “reasonably relocate” to Fujian, her home province (CB 121).

7. The Tribunal also found that if the applicant were to be detained by the police for participating in house church gatherings, there was: “… no information before the Tribunal to suggest that the applicant would face different treatment (to being warned and released), that would amount to serious harm…” (CB 121.2).

8. Further it found that the applicant’s continued practice of Christianity “… in Australia was engaged in otherwise than for the purpose of strengthening her claims to be a refugee…” (with reference to s.91R(3) of the Act) (CB 119.4).

9. In all the Tribunal accepted that the applicant was a Christian and had attended house churches in China. It did not disregard her religious practice in Australia pursuant to s.91R(3) of the Act, but found that she had not suffered “serious harm” in China.

10. It found that she did not have a particular profile or record with the Chinese authorities and would not face any greater harm than she had previously faced (that is, a warning from the authorities). In essence, therefore, this did not amount to “serious harm” for the purpose of s.91R.

Application to the Court

1. The applicant put forward three unparticularised grounds:

   “1. The Tribunal failed to provide me with a face to face interview opportunity for which I had requested.

   2. The Tribunal failed to consider the country information provided by my migration agent.

   3. The Tribunal failed to give me a fair treatment.”

Before the Court

1. At the hearing the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mr T Reilly of counsel appeared for the respondent Minister. Written submissions were filed only by the Minister.

2. The applicant confirmed that she had accessed the Court’s RRT Legal Advice Scheme and consulted a lawyer on the panel of that scheme. In spite of this, she was unable to provide any relevant particularity to the grounds as stated, nor to otherwise effectively point to any legal error on the part of the Tribunal.

3. Her complaints were that:

   1)She was denied a “face to face” hearing as she had requested.

   2)By conducting the hearing by video-link she was denied the opportunity of providing supporting documents in person.

   3)Before the Tribunal rejected her application, she should have been given “a letter to comment”.

   4)The Tribunal’s decision was “ridiculous” in finding she would not face “too much risk”.

   5)The Tribunal lacked logic in its thinking concerning the delay in making her protection visa application.

Consideration

1. Ground one of the application complains that the Tribunal failed to provide the applicant with a “face to face” opportunity as she had requested.

2. The Tribunal invited the applicant to appear at a hearing before it by letter dated 23 November 2010 (CB 80). It is clear on the face of that letter that the intention was to conduct the hearing with the Tribunal member and the interpreter located in Melbourne, and for the applicant, who resided on the North Coast of NSW, to physically attend at an address in Taree NSW in order to attend the hearing by way of

   
   

   video-link facility.

3. The letter advised that if the applicant had a “preference to attend in person in Melbourne…” she should contact the Tribunal (CB 80.7).

4. The applicant’s representative sought a postponement of the hearing date and further requested that: “… [the applicant] would like to attend the Sydney Tribunal in person if allowed.” (CB 82.7.) The Tribunal agreed to postpone the hearing (CB 85 and CB 87). In this letter, the Tribunal repeated that the arrangement was to conduct the hearing by video-link facility.

5. The representative then asked for a further adjournment (CB 90).

   
   

   No mention was made of the use of the video-link, nor was there any objection made to the hearing being conducted through the use of that medium. The Tribunal again agreed to the further postponement. Again, the video-link facility was made clear.

6. The hearing proceeded on 15 February 2011. The Tribunal member was physically in Melbourne. The applicant confirmed to the Court that she was physically in the Tribunal’s Sydney office and that she and her representative participated in the hearing by video-link facility.

7. A number of points need to be made.

8. First, the Tribunal was entitled to proceed to conduct the hearing by video-link pursuant to s.424A(b) of the Act.

9. Second, in the circumstances, it cannot be said that the applicant requested a “face to face” hearing. It may well be that there was some mistaken understanding by her representative of her instructions on this point. However the representative’s letter indicated that the applicant wanted to attend “in person” at the Sydney registry of the Tribunal. This was put clearly in circumstances where the arrangement proposed by the Tribunal was that the member would be in Melbourne.

10. If what was meant was that the applicant wanted her case to be transferred to a Sydney member so that she could attend “in person” in Sydney, then this was by no means clear. There was nothing said which could be construed as any objection to the use of the video-link facility or to the member to be located in Melbourne.

11. Ultimately, the applicant was permitted to appear in person at the Sydney registry as she requested. On what was before it, the Tribunal was entitled to proceed on the basis that it had complied with her request as put by her representative on her behalf.

12. Third, and in any event, on the two subsequent occasions when the applicant, through the representative, sought postponements of the hearing date no objection or further request whatsoever was made, either by the applicant or her representative, to press any appearance before the Tribunal in person in Melbourne, or to have her case transferred to the Tribunal’s Sydney Registry. (Why the case of an applicant living on the North Coast of NSW was constituted to a Melbourne member was never explained, but no legal error is revealed in this regard.)

13. The only claimed disadvantage that the applicant has put forward now is that by conducting the hearing via video-link the Tribunal denied her the opportunity of providing supporting documents in person.

    
    

    The applicant has not identified these documents before the Court. However, as Mr Reilly submitted, the applicant did submit a supporting document to the Tribunal on the day of the hearing (a letter from a church minister sent by facsimile (CB 99)).

14. If the applicant’s complaint is that she wanted to personally give the document to the Tribunal, it was not made clear what disadvantage she suffered in not being able to do so. As Mr Reilly also submitted, there is nothing to support any claim that she was impeded in properly presenting her case.

15. Further, it is important to note that the applicant was represented by a migration agent throughout the conduct of the review. No complaint was made to the Tribunal by her agent, or for that matter by her, as to any disadvantage suffered by the use of the video-link facility. In all therefore ground one does not reveal any error in the Tribunal’s decision.

16. Ground two of the application alleges that the Tribunal did not consider the country information provided by her migration agent after the Tribunal hearing.

17. To the contrary, the Tribunal specifically addressed the response by the applicant’s representative to the country information referred to at the hearing by the Tribunal. This is evidenced by the Tribunal attaching the response to the decision record at “Annexure B”, referring to this annexure at [33] and [34] (at CB 115) in the decision record, and then considering the annexure at [44] (at CB 119).

18. As Mr Reilly correctly submitted, there is no error of law if the Tribunal makes a wrong finding of fact or engages in unsound reasoning (Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20]). Further, the Court cannot engage in merits review if this is the real thrust of what the applicant now seeks from this Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568 (“Wu Shan Liang”)). Ground two is not made out.

19. Ground three complains that the applicant was denied procedural fairness.

20. In the circumstances it cannot be said that there was a denial of procedural fairness. The applicant was invited to a hearing before the Tribunal pursuant to s.425. The invitation complied with all the relevant statutory and regulatory requirements (s.425A, 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth)) and contained a reference to s.426A. The postponements of the hearing date were sought at the applicant’s initiative and convenience.

21. The applicant has not put any evidence before the Court to challenge the Tribunal’s account of the hearing. This account attaches a transcript of that part of the hearing involving at least some of the questions asked by the Tribunal and the applicant’s answers.

22. It is the case that, even on a fair reading of the Tribunal’s decision record, it is debatable whether the issue that determined the review was discussed at the hearing such that the applicant was a notice of the case against her on this alone.

23. But it is not necessary to pursue this point. The issue that determined the review was that the parts of the applicant’s account of events in China, including that which related to her church practice and which were accepted by the Tribunal, were not such as to rise to the level of “serious harm” as required to meet the definition of “persecution” as set out at ss.91R(1) and (2) of the Act.

24. Previously, the delegate had also not accepted all of the applicant’s factual account, but did accept that she had practiced as a Christian and attended at house churches. The delegate however was not satisfied that the past events would amount to “serious harm” in the future. The delegate was not satisfied that: “… the applicant has a profile which would attract the adverse attention of the authorities.” (CB 70.2.)

25. Although presented in a simplistic, formulaic way, I am satisfied on a fair reading that this also was the dispositive issue before the Tribunal. The applicant therefore would have been on notice of this issue following the delegate’s decision.

26. It should be noted that the Tribunal made a finding that the applicant could “relocate” from Shanghai (where she had lived for just over a year) to Fujian province (her home province) ([55] at CB 122).

    
    

    The import of this was that there was country information before the Tribunal that indicated the authorities in Fuijian were tolerant of house churches.

27. It may be that the Tribunal member used the term “relocation” loosely, or did not fully understand this concept as it arises in consideration of whether an applicant has a well-founded fear of persecution for a Convention reason. The relevant facts before the Tribunal were that the applicant’s home location was in Fujian province. She had lived in Shanghai for just over a year before coming to Australia. “Relocation” to a home location is conceptually contradictory. But what is of concern in particular is that the applicant claimed to fear persecutory harm from the authorities in all of China. The Tribunal’s various findings that the applicant’s situation and past experiences did not rise to “serious harm” were not location specific.

28. In these circumstances the consideration of the issue of relocation is inexplicable given that it applies to a consideration of relocating within the country of claimed persecution in circumstances where a

    
    

    well-founded fear of persecution is made out in relation to the applicant’s home area, or particular areas, and the decision-maker then considers whether the fear of persecution remains well-founded throughout the country. That is, if the applicant could reasonably and safely relocate to avoid persecutory harm.

29. In the current case, no such well-founded fear was found by the Tribunal to necessitate the consideration or application of this concept.

1. However, given that the Tribunal’s conclusion can be supported by its findings that the applicant’s circumstances, present and future, do not rise to the level of “serious harm” such as to fall within the statutorily enhanced definition of “persecution” (s.91R of the Act), then no legal error is revealed. While the Tribunal did not reason or express itself with clarity, I am satisfied on a fair reading that this is what occurred. No jurisdictional error is therefore revealed.

2. In all these circumstances, if the applicant believes that she was not given “fair treatment” because the Tribunal found adversely towards her, this complaint cannot succeed. The Tribunal’s findings of fact were reasonably open to it, and for which it gave reasons.

3. Further, I agree with Mr Reilly that it was open to the Tribunal to find that the applicant’s claims that she had been detained on several occasions, warned, and then released by the local police did not constitute “serious harm” in the circumstances and within the meaning of s.91R(1)(b) of the Act (see VDAU v Minister for Immigration and Indigenous Affairs [2005] FCAFC 32 at [24], VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212; (2005) 141 FCR 435 at [28]).

4. Although this is an example of where, on the Tribunal’s analysis, it can be said that other minds may have differed, nonetheless no legal error is revealed. Further, the applicant is not necessarily entitled to a fair outcome, but a fair process (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1; (1990) 64 ALJR 327).

5. At the hearing before the Court the applicant complained that the Tribunal should have given her “a letter to comment”.

6. If this was some reference to s.424A(1) and the Tribunal’s obligation to give the applicant in writing particulars of “information” which would be the reason, or a part of the reason, for affirming the delegate’s decision, then no breach of s.424A is evident.

7. On the material before the Court, any such “information” was either given by the applicant in writing in relation to her application for a protection visa, or given to the Tribunal in relation to her application for review (and therefore comes within the exemptions contained in s.424A(3)(ba) or (b)). Country information comes within the exemption contained in s.424A(3)(a).

8. The Tribunal’s view, and analysis, of the applicant’s evidence, is not “information” for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 at [17] to [18]). In any event, before the Court, it appeared the applicant’s complaint was that the Tribunal should have given her, in writing, the opportunity to comment on its proposed findings. In other words a copy of its draft decision record. If this was the basis of the applicant’s complaint then there is no such obligation on the Tribunal.

9. The applicant’s complaint relating to the Tribunal’s conclusion that she would not face “too much risk” is, in all the circumstances, a challenge to the factual findings made by the Tribunal and its conclusion based on these. In other words, she is seeking impermissible merits review of this Court (Wu Shan Liang).

10. The applicant also complained about the Tribunal’s thinking concerning her delay in applying for a protection visa. She said it lacked logic. The difficulty for the applicant is that the Tribunal did not demonstrate any such thinking in its analysis in its decision record (see “Findings and Reasons” at CB 118 to CB 123).

11. If the applicant was seeking to complain about the delegate’s analysis, which did contain such a reference (see CB 69 to CB 70), then the delegate’s decision is a “primary decision” within the meaning of s.476. The delegate’s decision was reviewable, and indeed was reviewed, by the Tribunal and therefore this Court does not have jurisdiction to review it.

Conclusion

1. For the applicant to succeed, the Court would need to discern jurisdictional error in the Tribunal’s decision. No such error can be found. The application therefore is to be refused.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  7 September 2011