SZQOP v Minister for Immigration

[2012] FMCA 281

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQOP v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 281

MIGRATION – Review of decision of the Refugee Review Tribunal – seeking impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A, 424AA, 424B, 425, 425A, 426, 426A, 441A, 441C, 441G, 476

Migration Regulations 1994 (Cth) reg.4,35, reg.4.35D

Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138
SZEVI v Minister for Immigration [2005] FMCA 1093
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25

Applicant: SZQOP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1870 of 2011

Judgment of: Nicholls FM

Hearing date: 21 February 2012

Date of Last Submission: 21 February 2012

Date Judgment Reserved: 12 March 2012

Delivered at: Sydney

Delivered on: 5 April 2012

REPRESENTATION

Counsel for the Applicant: In Person

Appearing for the Respondents: Ms A Crittenden

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 24 August 2011 is dismissed.

2. The applicant pay the first respondent’s costs, set in the amount of $4,473.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1870 of 2011

SZQOP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 24 August 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 28 July 2011, affirming the decision of the delegate of the respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on a visitor visa on 16 October 2010, utilising a “fake” passport. She applied for a protection visa on 14 December 2010 (Court Book – “CB” – CB 1 to CB 29). She was assisted in this application by a registered migration agent, Ms Jie Yu (CB 8, CB 30 to CB 32).

Claims to Protection

1. The applicant’s claims to protection are set out in a “Personal Statement” annexed to her protection visa application (CB 26 to CB 29).

2. The applicant claimed to have been persecuted in China for her Christian beliefs and participation in the “underground religious aggregation” (an “underground” church). Her fiancée had been gaoled for his participation in this church. She claimed to have left China using false identification as her personal details were recorded by the security agencies, and her exit would be restricted if she were to use her true passport.

3. The applicant’s factual account was that, on 13 December 2009, her fiancée arranged and hosted a discussion at his home, attended by about 20 people, on how to arrange the Christmas activity. The applicant and her family attended. A number of policemen arrived and dispelled the attendees by force. The applicant’s fiancée pushed a policeman, and was then hit by a stick. The applicant and several others were dragged to police cars. The applicant’s parents and two sisters attempted to stop the police and were also arrested. The applicant and her fiancée were detained for 15 days. Her parents were held overnight. When the applicant refused to write a letter of “guarantee” that she would not take part in such activities, she was taken “… by force to join the political classes held by the local government and public security department”. She was held there for seven nights before being sent home.

4. On release, “some sisters” advised the applicant to take “extra care” as they had heard that the police were looking for her in relation to bible classes. On Easter Day 2010 the applicant was woken by three men, who identified themselves as police, who asked the applicant and her fiancée to go with them to the Public Security Bureau (“PSB”). They refused and were arrested for disturbing the social order. The applicant was also accused of “cheating on money and property”.

5. The applicant was taken to a room and made to kneel on the “freezing floor” to confess her guilt. She was asked to write a list of names of those who attended the bible class. The applicant did not do so “… as I know they would treat the sisters by the same way”. She was then “smashed” in the face. The applicant told police that she was pregnant, but the torture continued. On the third morning she experienced unbearable stomach pain and bleeding. She was taken to hospital, but miscarried. Following this the applicant was returned home, but her fiancée continued to be detained. He was tried on 20 May 2010 and received a two year sentence of imprisonment and a fine.

6. The applicant claimed that she feared for the safety of both herself and her family, and was advised that the only “option” was to escape China. The PSB had taken her passport, but a friend sought the assistance of an agent in “… lodging all the relevant formalities of going overseas”. While waiting, the applicant was diagnosed with “severe depression”, and experienced suicidal thoughts.

The Delegate

1. The delegate was not satisfied that the applicant was a credible witness (CB 57). It found her explanations to lack credibility and her responses to questioning to be brief and “limited, vague and inconsistent” (CB 57). The delegate considered the applicant’s responses to be those of “… someone who had been coached and whose responses had been rehearsed for the purpose of the interview” (CB 58). The delegate found the applicant’s level of knowledge of Christianity to be inconsistent with her claims to have been an organiser of bible classes (CB 58). The delegate also noted significant discrepancies in the applicant’s account as between her written statement and the information provided at interview (CB 58 to CB 59).

2. The delegate noted that, despite the applicant’s claims to have attended a church in Australia, she was unable to provide letters of support from either the clergy or members of the congregation. She found the fact that the applicant had not discussed her fears or sought support in this way “… leads me to the belief that she does not hold a subjective fear of return to China” (CB 59).

3. Ultimately, the delegate was not satisfied that the applicant was a genuine Christian. Moreover, country information did not support her claim that Christians from her area in China were the subject of persecutory treatment, such that her continued worship, were she to return to China, would not “… bring her to the adverse attention of the Chinese authorities” (CB 60).

4. The delegate concluded that the applicant would not face a real chance of persecutory harm if she were to return to China, and did not have a genuine fear of harm. The applicant’s fear of persecution, therefore, was not well-founded (CB 61).

The Tribunal

1. The applicant applied for review to the Tribunal on 2 May 2011 (CB 65 to CB 68). She was invited to attend a hearing by way of video-link on 8 July 2011 (CB 70). The applicant’s migration agent did not attend on this occasion. Though an adjournment was offered so that the agent could attend, the applicant indicated that she wished to proceed without her representative ([30] at CB 94).

2. By letter dated 20 July 2011, the Tribunal invited the applicant to comment on information indicating that the applicant had not been baptised (CB 78 to CB 79). The applicant responded by letter dated 23 July 2011 (CB 80 to CB 81).

3. In its decision record, dated 28 July 2011, the Tribunal noted significant inconsistencies and “aspects of the applicant’s evidence” which caused it to have doubts as to her credibility (see [104] at CB 105 to CB 106). The Tribunal also found that the applicant’s level of religious knowledge was inconsistent with her claimed practice ([105] at CB 106). The applicant’s attendance at church in Australia was viewed as not being done otherwise than for the purpose of strengthening her claims to be a refugee. As such, no regard was had to this conduct pursuant to s.91R(3) of the Act ([107] at CB 107). As a result, the Tribunal found that the applicant was not a Christian, and had not suffered the harm that she had claimed ([109] at CB 107).

4. The Tribunal found that the applicant did not have a well-founded fear of persecution for any Convention reason ([111] at CB 107), and was not owed any protection obligations by Australia ([112] at CB 107). The Tribunal affirmed the decision of the delegate not to grant a protection visa ([113] at CB 107).

Application to the Court

1. The application to the Court is in the following unparticularised terms:

   “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.”

2. Despite opportunity, no amended application was filed.

Before the Court

1. Before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms A Crittenden appeared for the first respondent. In addition to the Court Book, the Court was assisted by written submissions filed on behalf of the first respondent.

Complaint before the Court and Ground Two

1. The applicant’s complaint put orally before the Court was that the Tribunal had acted unfairly and denied her justice. The applicant submitted that the Tribunal wrote to her after the hearing. This was clearly a reference to its letter of 20 July 2011 inviting comments on information that the leader of the church group in Australia that the applicant claims to have been attending had advised that she was not baptised (CB 78 to CB 79).

2. The complaint was that the Tribunal wrote to her and told her that before her case was to be finalised she only had to answer the one “question” posed in the letter. That is, that she understood the matter raised in the letter to be the only outstanding matter against her. Yet in its reasons the Tribunal, in its “rejection” (decision record), “listed many other questions”. That is, it relied on other matters to reject her claims.

3. Although it was not entirely clear, the applicant appeared to expand the complaint to say that in relation to these other “questions” on which the Tribunal relied she was not given the opportunity to “reply”. That is, to comment.

4. Initially I understood this to be a complaint that the Tribunal should have referred to all these other “questions” in its letter, thus giving her the opportunity to respond.

5. However, the applicant subsequently sought to apparently rely on the affidavit of Ms Susan Archer, made on 14 October 2011, annexing a transcript (“T”) of the Tribunal’s hearing, to argue her complaint. The applicant said that her migration agent, whom she knew only as “Brother Li”, had told her that she should obtain the transcript and give it to the Court. [It appears that a “Mr Li Zhang”, a migration agent, represented the applicant before the Tribunal for the purposes of the review (CB 62 to CB 64).] Perhaps understandably, given that the initiative for the presentation of the transcript came from her agent rather than the applicant, she was unable to explain what relevance or reliance she placed on it.

6. The respondent had not been served with the affidavit of Ms Archer, nor with the annexed transcript. In view of this, leave was granted to the Minister to make any further written submissions on it. Leave was also granted to the applicant to file and serve any written submissions in reply. Neither party took this opportunity.

7. The applicant’s oral complaint, putting the best possible interpretation on it, was that the Tribunal did not give her the opportunity to comment on the full range of matters it subsequently relied on. It did not give her the opportunity to reply at the hearing and that, in any event, there were only “eight days” between the hearing and the date of the decision. This was not sufficient time to explain her case. [The applicant may have confused this with the letter of invitation to comment sent eight days before the decision was made. See [51] – [52] below.]

8. At best, although it was certainly not made clear, it perhaps can be inferred that the applicant saw the hearing as the opportunity for the Tribunal to put its questions and that she would be given the opportunity to subsequently comment in writing.

9. The applicant’s complaint can, again at best for the applicant, be characterised as an allegation that she was denied procedural fairness by the Tribunal. This indeed is the bare complaint at ground two of the application to the Court. The applicant’s oral complaint therefore can be seen as submissions in support of this ground.

10. This is a case to which s.422B of the Act applies. Thus making the matters set out in Div.4 of Pt.7 of the Act, the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in that Division (Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204). The applicant’s submissions clearly invoke and relate to the Tribunal’s obligations pursuant to s.425 and s.424A of the Act.

11. The applicant was invited to a hearing pursuant to s.425 of the Act (CB 70 to CB 71). On the material before the Court that invitation complied with all the relevant statutory requirements (ss.425, 425A, 426, the reference to ss.426A, 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”)).

12. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”) the High Court explained the Tribunal’s procedural fairness obligations as they arise in the context of a hearing conducted following an invitation pursuant to s.425 of the Act. Relevantly, an applicant is entitled “… to be given the opportunity of ascertaining the relevant issues …” (at [32], citing Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at [19]).

13. In this context, and bearing in mind the language of s.425, it is for the Tribunal to identify the issues (SZBEL at [35]). But if it takes no step at the hearing “… to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “… ‘the issues arising in relation to the decision under review’… ” (SZBEL at [35]).

14. Less the applicant in the current proceedings be in any doubt, that means that if the delegate’s decision raised the issue, or issues, on which the Tribunal subsequently relied to affirm the delegate’s decision, then the Tribunal does not need to do anything further in this regard at the hearing.

15. In the current case the applicant would have clearly known following the delegate’s decision that the credibility of her factual account to fear harm in China because of her claimed religious beliefs and practice was at issue. The delegate’s clear statement: “I am not satisfied that the applicant is a credible witness …” (CB 57.4) and what follows does more than “sufficiently” indicate (SZBEL at [47]) that the applicant’s entire factual account in support of her claim to fear persecutory harm in China because of her religion, was at issue.

16. It is clear from the Tribunal’s decision record that the issue that determined the review was the Tribunal’s rejection of the applicant’s claim to be a Christian and its rejection of the factual basis of her claims to have suffered harm for this reason in the past in China ([109] at CB 107).

17. The consonance between the basis of the delegate’s decision and the Tribunal’s conclusion, that is the only issue dispositive of the review, being the same issue for the delegate’s decision, means that the procedural fairness obligation arising as a consequence of s.425 of the Act was discharged.

18. In any event in the current case it is clear from a reading of the transcript of the hearing that the Tribunal did give the applicant the opportunity to speak and expand upon her account of past harm and the basis of her religious faith.

19. Further, the Tribunal specifically put to the applicant its concerns about her evidence in relation to her claimed religious faith (T 29): “Why should I think that you’re a Christian and not just someone who had memorised the Bible?”

20. It is quite understandable that an unrepresented applicant before the Court may have difficulty in understanding the requirements of s.425 and s.424A of the Act and confuse the separate purposes and obligations set out in each of those sections.

21. This is an example of where the Court’s “RRT Legal Advice Scheme” can play an important role in providing an opportunity to an applicant to gain some relevant understanding. In the current case the applicant did seek, and was provided with, this opportunity. That she appears to have relied on the purported legal advice provided by a migration agent to argue her case before the Court, rather than a lawyer, is of course a matter for her.

22. But what remains, whether the applicant had such opportunity or not, the applicant’s misunderstanding of the applicable law now does not reveal jurisdictional error on the part of the Tribunal.

23. It is clear that the letter sent by the Tribunal after the hearing was done so that it could fulfil its procedural fairness obligation set out in s.424A of the Act. The letter referred to information subsequently obtained by the Tribunal from a religious leader who had provided a letter in support of the applicant (CB 74 to CB 79). The information though obtained by the Tribunal from a religious leader was “information”, as that term is understood (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609), as it was information that the Tribunal considered would be a part of the reason for affirming the delegate’s decision.

24. This was not information caught by the exemption in s.424A(3)(a) of the Act (it was in personam information), and given its provenance was not able to be raised at the hearing (it post-dated the hearing) and the facility available in s.424AA of the Act (and s.424A(2A)) could not be used. The Tribunal acted correctly in putting this information, in writing, to the applicant in fulfilling its procedural fairness obligation under s.424A(1) of the Act (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162).

1. In relation to s.425 of the Act, there was no need for the Tribunal to provide another hearing to the applicant in relation to the information provided by the religious leader as the issue to which the information related, the applicant’s claimed practice of Christianity (and her practice of Christianity in Australia) was raised before the delegate (CB 95.6). Therefore it was an extant issue for which no further hearing was required (SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 and SZEVI v Minister for Immigration [2005] FMCA 1093).

2. In relation more generally to s.424A, the internal inconsistencies in the applicant’s evidence and claims relied on by the Tribunal are not “information” for the purposes of that section (SZBYR at [17] – [18]). The applicant’s evidence to the Tribunal, what she put in writing to the Minister’s department and the documents she gave to the Tribunal were all exempt from the requirement in s.424A(1) of the Act by the operation of s.424A(3)(b), (ba) and (b) respectively. The Tribunal complied with, and no breach is evident in relation to, both s.425 and s.424A.

3. In relation to the applicant’s specific oral complaints:

   1)The transcript shows that the Tribunal did give her the opportunity to comment “on the full range of matters” it relied on. That is, her factual account in support of her claim to fear persecutory harm.

   2)It did give her the opportunity to comment on the issue in relation to the review. The Tribunal explained at the beginning of the hearing that it would give her the opportunity to raise any other matters she considered important (T 2.8).

   3)The Tribunal’s questioning was probative of the applicant’s claims such that she was able to add and give further explanations. Towards the conclusion of the hearing the Tribunal asked the applicant if there was anything else she wanted to say (T 30.5).

4. Further, the Tribunal facilitated the giving of further information by the applicant by way of the letter of support from the religious leader (T 30.8). It was this letter, and particularly the Tribunal’s subsequent inquiry (see [99] at CB 103), which necessitated the “s.424A letter” to be sent to the applicant.

5. There is nothing in the transcript of the hearing to suggest that the Tribunal promised any further opportunity to the applicant to comment on the matters discussed. Nor was the Tribunal obliged to provide any opportunity at that time given it had complied with the relevant procedural fairness requirements. The applicant could not have reasonably formed any such expectation based on anything said at the hearing.

6. As referred to above, the Tribunal’s subsequent letter was necessitated by the operation of s.424A. There is nothing in the terms of the letter to suggest that the Tribunal had accepted the credibility of what the applicant had said at the hearing. Nor is there anything in the letter such that it is reasonable to say the applicant’s case would fail simply because of the contents of the letter from the religious leader.

7. It may be allowed that in the absence of knowledge of the operation of s.425, and relevantly s.424A of the Act, the applicant may have understandably formed this view, but this does not reveal legal error on the part of the Tribunal.

8. In the circumstances, the applicant’s complaint about the insufficient time between the hearing (8 July 2011) and the date of decision (28 July 2011) for her to make further comments does not succeed in revealing any failure of procedural fairness on the part of the Tribunal. The applicant’s opportunity in this regard was provided at the hearing.

9. The applicant’s complaint that she was only given eight days to comment cannot refer to the date of the hearing as she submitted to the Court. If this was a mistaken reference to the Tribunal’s letter of 20 July 2011 then the Tribunal provided the reasonable time provided in the statute and regulations (see CB 78, CB 76 and s.441(A)(5), s.441C(5), s.424B, s.441G of the Act and reg.4.35 of the Regulations).

Ground One

1. Ground one of the application asserts that the Tribunal considered her case “unfairly”. To the extent that this seeks to cavil with the Tribunal’s conclusion then the Tribunal is obliged to provide a fair process not a “fair” outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1).

2. The complaint that her claim was “doubted” without “substantive evidence” misunderstands the nature of the task statutorily set for the Tribunal. It is for the applicant to put forward her claims and evidence and for the Tribunal to reach a requisite level of satisfaction such that the protection visa must be granted (s.65 and s.36(2) of the Act and see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). Absent this satisfaction a refusal is mandated (s.65 of the Act).

3. The Tribunal is not obliged to make out the applicant’s case for her. Nor does it have to uncritically accept any or all of what the applicant said (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559). The Tribunal does not have to find evidence, “substantive” or otherwise, to disprove an applicant’s claims (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 and Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 (“Abebe”) at [187]).

4. The findings of fact made by the Tribunal, including findings on credibility, are for the Tribunal to make as the decision maker “par excellence” (Abebe). The Tribunal’s findings were open to it and it gave reasons reasonably open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). No legal error is apparent.

Ground Three

1. Ground three, in all the circumstances, can only be seen as a disagreement, or challenge, to the Tribunal’s conclusion. It seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25). The Tribunal plainly did consider the applicant’s claims to fear persecutory harm in China, including consideration of her claimed circumstances in China. It simply did not believe her. No error is revealed in these circumstances.

Conclusion

1. For the applicant to succeed the Court would need to discern jurisdictional error in the Tribunal’s decision. As no such error is evident the application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  5 April 2012