SZQGN v Minister for Immigration
[2011] FMCA 983
•14 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQGN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 983 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error - whether delay by the Tribunal in making its decision is undue – whether the Tribunal’s decision was affected by bias or apprehended bias – whether the Tribunal understood the evidence before it. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2 |
| SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668; Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507; 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; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259; Abebe v Commonwealth of Australia (1999) 197 CLR 510; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24; |
| Applicant: | SZQGN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1070 OF 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 29 November 2011 |
| Date of Last Submission: | 29 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2011 |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondent: | Mr O. Jones (Clayton Utz Lawyers) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1070 of 2011
| SZQGN |
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 29 April 2011 and handed down on 2 May 2011.
The applicant claims to be a citizen of the People’s Republic of China and of Christian faith and Han Chinese ethnicity (“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 9 February 2010 having departed illegally from China on a false passport issued in another name.
On 18 March 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 2 July 2010, the Delegate refused the Applicant’s application for a protection visa.
On 20 July 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 29 April 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 25 May 2011, 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 statement in support of his protection visa application in which he stated, relevantly, that:
a)The Applicant was born on 26 October 1979 in Fuqing City, Fujian province, China, and worked as a plumber in Fujian province.
b)The Applicant’s family is Han Chinese by ethnicity and of Catholic faith. His family came from three generations of underground Catholics and attended Mass every week where they prayed and sung hymns. The Mass would take place at various places in the village such as farms, factories or people’s houses as they did not have a church and the location would be advised by a village representative. They did not have any public celebrations as the government did not allow their underground practice.
c)The Applicant joined a Catholic Youth Group in 1996 when he was 16 years old. The group met on Saturday nights and listened to sermons and had a gospel group.
d)In 2003, the Applicant’s strong beliefs lead him to becoming a missionary. The missionary group was composed of over 20 people and they met usually once a month in other people’s houses in Long Tian town. On Saturdays, the Applicant went on his own and spoke to 10-20 people located in different villages in the Long Tian district.
e)The Applicant met his wife through the Church in 2004. They have one daughter born in December 2005.
f)On 24 December 2005, the Applicant was stopped by police when he was travelling by car from Long Tian to Jiang Jing town to celebrate a Christmas Mass in that town. The Applicant tried to do a u-turn but wasn’t successful. The police were holding a picture of the leader of the missionary group with whom the Applicant was travelling.
g)They were both arrested and the Applicant was taken to the local police station and was left there for 10 hours. The officer questioned the Applicant about where he was going, who else was going and the names of persons there. They were unsatisfied with the Applicant’s responses and punched him. After being questioned for 2 hours, he was left for 10 hours and later taken to a detention centre in Fu Qing and left in a small dark room from 25 December 2005 to 8 January 2006. The Applicant was fearful for his wife, child and parents and felt helpless and terrified.
h)On 8 January 2006 a police officer took the Applicant out of the room and told him that he was not to be involved in gatherings anymore and that if he did so in the future, he would be put in jail. The officer made the Applicant sign a piece of paper and took a payment of 10,000 Yen from the Applicant.
i)In February 2006, the Applicant moved to Zhe Jiang province. The Applicant could not follow his beliefs and could not celebrate Mass or go to church. However, he continued to meet with some underground Catholics from his previous hometown approximately once a month.
j)In 2007, the Applicant went back home for the funeral of the leader of his missionary group. The Government and police were at the funeral and tried to take the body away.
k)The Applicant provided several photographs showing various people at the funeral and at other Catholic gatherings.
l)On 28 January 2010, the Applicant returned home to celebrate New Year and attended a gathering at his parents’ house organised by members of the Catholic Youth Group. During the gathering, 7-8 police officers and members of the police assistance group forced their way into the house. They tried to capture the Applicant but he escaped through a back window fearing that he would be arrested because he had not ceased his Catholic Church activities.
m)The Applicant went to a relative’s home in Long Tian town who arranged for him to go to Shen Zhen on 31 January 2010 for 7 days with the relative’s friend. The friend provided the Applicant with a fraudulent passport and arranged for him to travel to Australia. The Applicant arrived in Australia on 9 February 2010.
n)The Applicant’s wife told him that the authorities were still looking for him and had come to their house and asked if she had had any contact with the Applicant and had threatened her that she would lose her job.
o)The Applicant fears that if he were to return to China, the authorities will arrest and jail him. He would not be able to practise his faith or obtain any help from the authorities. His family is very upset over the incident and if he is imprisoned it will cause great damage to his young daughter.
The Delegate’s decision
On 11 June 2010, the Applicant attended an interview with the Delegate.
On 2 July 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 the Applicants claims were not consistent with the country information before it. The Delegate referred to independent country information before it that did not support the Applicant’s claim that Catholics are subject to persecution by Chinese authorities in Fujian Province. Further the Delegate found that the Applicant’s description of the registered church movement in China was not consistent with country information before it. The Delegate also found that the applicant’s baptism had been registered with a parish that is registered with Chinese authorities and therefore is not an underground church.
The Delegate considered that, even if it was wrong, mere membership of an underground Catholic Church in Fujian province is not sufficient by itself to bring the Applicant to the adverse attention of the Chinese authorities.
The Delegate was satisfied that the Applicant would be able to practise his faith either at a registered or underground Catholic Church in Fujian without any real fear of harm or persecution if he were to return to China.
Moreover, the Delegate found aspects of the Applicant’s claims to be “vague, inconsistent and lacking in credibility.” The Delegate found that some aspects of the Applicant’s claims had been fabricated.
Ultimately, the Delegate was not satisfied that the Applicant had experienced past persecution in China because the Delegate was not satisfied that the Applicant has a religious profile that would attract the adverse attention of the Chinese authorities on return.
The Tribunal’s review and decision
On 20 July 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 2 August 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 21 September 2010 to give oral evidence and present arguments.
On 21 September 2010, the Applicant attended the Tribunal hearing and gave evidence.
This hearing was adjourned and on 22 September 2010, the Tribunal invited the Applicant to attend a subsequent hearing on 29 October 2010.
On 21 September 2010, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“6. The Tribunal accepted that independent country information consulted by it indicated that there was a reasonably high degree of tolerance by PRC authorities towards the underground Roman Catholic Church in Fujian. Nonetheless, the Tribunal accepted that the same information suggested there was sometimes persecution of some members of the church by PRC authorities.
7. The Tribunal was ultimately prepared to put aside its doubts and accept that the Applicant was and is a Roman Catholic, belonging to and attending an unauthorised church of that denomination in the PRC and attending the Catholic Church in Australia. However, the Tribunal did not accept that the Applicant or his wife was of interest to the authorities in the PRC due to religion or religious activities. He was not detained by the PRC authorities on this basis. He did not move provinces in China due to fear of harm. The Applicant did not have a profile as a missionary, evangelist or youth leader with the underground Roman Catholic Church in the PRC. The Tribunal had not left the PRC, nor was he unwilling to return to the PRC, for the reasons that he claimed.
8. The Tribunal's basic reason for finding against the Applicant was that the Tribunal did not consider the Applicant had told the Tribunal the truth in relation to his claims. In this respect, the Tribunal referred to the following matters:
(a) if the Applicant suffered and feared the serious harm in Fujian that he claimed, he would not have returned to the family home for about ten days each year;
(b) the Applicant's claim that the authorities were interested in his family was not consistent with his evidence that his parents, wife and daughter were still living in the family home without any difficulties;
(c) the Applicant's evidence with respect to how he obtained a false passport and left China for Australia was not plausible;
(d) documents and photographs provided by the Applicant were not reliable evidence of his religious activities in light of the existing credibility concerns with the Applicant's evidence and country information in relation to document fraud in China; and
(e) the Applicant's health issues did not indicate that the Applicant feared persecution for the reasons he claimed.
9. The Tribunal ultimately found that, while there is a remote possibility that the Applicant might suffer persecution in China because he attended an unauthorised Roman Catholic Church, it was not satisfied that there was a real chance that the Applicant had suffered persecution in the PRC or would suffer the same if he returned. Accordingly, the Tribunal affirmed the Delegate's decision to refuse the visa.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 16 June 2011, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the ground of his application made the bare assertion that “There was an error of law in the Tribunal’s decision constituting a jurisdictional error”. I explained to the Applicant that the assertion was unsupported by particulars and did not by itself disclose an error capable of review by the Court. 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, as well as submissions in support.
At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
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 ground contained in the application filed on 25 May 2011 as follows:
“1. There was an error of law in the Tribunal’s decision constituting a jurisdictional error.”
The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of the application generally.
In support of his application, the Applicant made three further complaints orally to the court:
i) That there had been an undue delay by the Tribunal in making its decision;
ii) That the Tribunal was biased in that there was no evidence upon which it based its decision;
iii) That the Tribunal had no understanding about China.
These complaints are dealt with below.
i) That there had been an undue delay by the Tribunal in making its decision
In relation to the Applicant’s allegation that there was an undue delay by the Tribunal in the delivery of its decision, I do not accept that proposition and, even if it were so, it does not necessarily amount to jurisdictional error.
As stated above, on 20 July 2010 the Applicant lodged an application for review of the Delegates decision by the Tribunal and attended hearings before the Tribunal on 21 September 2010 and again on 29 October 2010. The Tribunal handed down its decision some six and a half months later on 29 April 2011. There was no evidence placed before this Court by the Applicant to support his allegation of undue delay. There was no minimum date required by statute for the Tribunal to hand down its decision. The number of matters that the Tribunal deals with is well documented and I do not accept that the delay by the Tribunal in handing down its decision was “undue”.
Moreover, at the conclusion of his oral submissions, the applicant then stated that the Tribunal had been too hasty in making its decision and not taking sufficient time in reaching its conclusions. Such a submission is clearly inconsistent with the applicant’s assertion of delay.
In any event, no jurisdictional error has been demonstrated by the applicant in respect of the timing and handing down of the Tribunals decision.
That the Tribunal was biased in that there was no evidence upon which it based its decision
In relation to the Applicant’s allegation of bias by the Tribunal against the Applicant, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. 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]).
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 16 June 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 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 is not made out.
iii) That the Tribunal had no understanding about China
The Applicant’s third complaint is that the Tribunal had no understanding of the situation in China. Such a complaint by itself does not establish jurisdictional error on the part of the Tribunal.
The Applicant attended two hearings before the Tribunal and was given at least two opportunities to provide whatever material he wished in support of his refugee claims. A fair reading of the Tribunal’s decision record makes clear that the Tribunal heard from the Applicant on two occasions and also received oral evidence from the Applicant’s witness. The Applicant was represented in relation to the review and at the hearing before the Tribunal by a solicitor from the New South Wales Legal Aid Office.
The Tribunal’s decision record makes clear that the Tribunal gave careful consideration to all of the Applicant’s claims and explored those claims in some detail. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal received further material from the Applicant after the first hearing. At the second hearing, the Tribunal continued to explore with the Applicant his claims in detail and again put concerns about his evidence to him, noting his responses. The Tribunal also heard from the Applicant’s adviser at the second hearing and the Tribunal noted in detail the substance of the submissions made by the advisor. Further, the Tribunal received further material from the Applicant following the second Tribunal hearing.
The Tribunal identified with specificity the country information to which it had regard. Moreover, it is a matter for the Tribunal the country information to which it has regard and the weight it attaches to that material and the use that it makes of it. Further, the Tribunal is not bound by the rules of evidence in conducting its review and may obtain information it considers relevant. NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”).
The Tribunal acknowledged the “sometimes conflicting information on the treatment of Roman Catholics in Fujian.” The Tribunal accepted that there is sometimes persecution of some members of the underground Roman Catholic Church in Fujian by PRC authorities. The Tribunal also accepted that the Applicant was a Roman Catholic and that he belonged to the unauthorised Roman Catholic Church in China in Fujian and attended some gatherings of that Church when he was in China, although “not without some doubt”.
However, the Tribunal did not accept that the Applicant was of interest to authorities in China for the reasons claimed and did not accept that he had been detained and questioned by authorities in China for the reasons he claimed. The Tribunal did not accept that the Applicant had moved in order to avoid harm or that he or his wife is of interest to Chinese authorities or that his wife has suffered any harm as a result of the Applicant’s activities. The Tribunal found that the Applicant did not have a profile as a “missionary, evangelist, or youth leader” with the underground Roman Catholic Church as claimed. The Tribunal did not find the Applicant to be truthful about his claims and found his explanations to concerns raised by the Tribunal not to be reasonable, credible or satisfactory.
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).
“[67]…However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. …”
The Tribunal concluded that there was a remote possibility that the Applicant may suffer persecution in China if he attended the unauthorised Roman catholic Church, however, found that there was no plausible evidence to suggest that there was a real chance that the Applicant has suffered or will suffer persecution in China for any convention reason either now or in the reasonably foreseeable future if he was to return to China.
The Tribunal concluded that on the evidence before it the Applicant does not have a well founded fear of persecution in China for a convention related reason.
The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Otherwise the Applicant’s complaints are no more than a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot 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.
Accordingly none of the Applicant’s complaints are made out.
Conclusion
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 two hearings; heard evidence from the Applicant’s witness; heard submissions from the Applicant’s adviser; 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.
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 two (62) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 14 December 2011
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