SZQSA v Minister for Immigration
[2012] FMCA 328
•17 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQSA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 328 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – request for impermissible merits review – failure to consider a claim – allegation of bias – Tribunal as arbiter of religious faith – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.474, 476 |
| Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 |
| Applicant: | SZQSA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2224 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 April 2012 |
| Date of Last Submission: | 17 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2012 |
REPRESENTATION
| The Applicant: | In Person. |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 4 October 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2224 of 2011
| SZQSA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application, made on 4 October 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 20 September 2011, which affirmed the decision of the respondent Minister’s delegate (“the delegate”) to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on 6 December 2010 and applied for a protection visa on 19 January 2011 (Court Book – “CB” – CB 1 to CB 37 with annexures). She was assisted in her application by a registered migration agent (CB 4) who was also appointed the person authorised to receive documents from the Minister on her behalf (CB 38 to CB 40).
Included with the protection visa application was a statement in which the applicant set out her claims to protection (CB 26 to CB 27). The applicant claimed:
1)She became familiar with many of the members of her local church in 2003 and met with them to discuss and organise Church activities.
2)On 15 August 2009 the applicant and her “sisters and brothers” were celebrating a Chinese festival at her home. This appears to have been described as the “Lunar festival”. The applicant claimed that numerous police officers attended at her home. They appeared to be drunk and smelt of alcohol. They entered the applicant’s house and assaulted her and her friends. The police claimed that the applicant’s house was being used for an illegal gathering, and she and her friends were detained.
3)The applicant was accused of spreading “rumours” and was detained for a “half month”, during which time she was severely beaten.
4)After her release, several police officers came to the applicant’s home and threatened that she would be detained again and made “disabled” if she did not leave her hometown. Although she did not return home after this threat, she continued to work in a restaurant close to her home for another two months.
5)If she returned to China her personal safety was at risk.
The Delegate
By letter dated 24 January 2011 the applicant was invited to attend an interview with the delegate on 23 February 2011 (CB 42 to CB 43). The applicant was assisted by an interpreter in the Mandarin language on that occasion (CB 54)
On 24 February 2011 the delegate refused the grant of a protection visa (CB 46 to CB 64). Based on her limited knowledge of Christian principles, and her limited attendance at church in both Australia and China, the delegate found that the applicant was not a genuine Christian (CB 60 to CB 62). In these circumstances, the delegate was not satisfied that the applicant had been arrested and detained. Nor that she was of interest to the Chinese authorities by reason of her claimed faith (CB 63).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 25 March 2011 (CB 65 to CB 68). The applicant was represented by the same migration agent (CB 66).
By letter dated 15 April 2011 and addressed to her representative, the applicant was invited to attend a hearing on 23 June 2011 (CB 71 to CB 73). The applicant attended on that day and gave evidence to the Tribunal (CB 76). The only record put before the Court of what occurred at that hearing is the very brief account set out in the Tribunal’s decision record ([27] – [33] at CB 86).
On 21 September 2011 the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa ([47] – [48] at CB 87). The Tribunal’s finding and reasons, as brief as they were, were set out in its decision record ([37] at CB 86 to [46] at CB 87), a copy of which was provided to the applicant (CB 80 to CB 81).
The Tribunal found that “… the applicant did not display a level of knowledge of Christianity commensurate with that of a genuine Christian” ([41] at CB 87). In the circumstances, the Tribunal held that the applicant was not a practising Christian ([44] at CB 87).
While it accepted, unlike the delegate, that the applicant had been detained and assaulted by the police officers, based on the applicant’s evidence it found that they were “rogue officers in a state of intoxification” ([42] at CB 87). Further, that her detention was not linked to any religious beliefs ascribed to her and, if she returned to China, she would not be perceived to be a Christian by the Chinese authorities ([43] – [44] at CB 87). In essence, the Tribunal found that her detention had no link to the Refugee Convention definition of “refugee” ([44] at CB 87).
The Application to the Court
In her application to the Court the applicant put forward three, it must be said, bare and unparticularised grounds:
“1, I am a Chinese citizen and Christian who had been persecuted by Chinese government. I had been arrested by the corrupted government and police.
2, I can not go back to China since I am very scared to be sentenced.
3, The Chinese government still looks for me if I return. My friends told me not to go back since the police are still looking for me.”
I also note that under the heading “Orders sought by Applicant” the following statements are made by the applicant:
“1, I disagree with Immigration and RRT’s decision. They did not consider that I will be in danger if I return.
2, RRT did not consider that I will be persecuted and in big trouble if I return home.
3, RRT member questioned me at hearing made me feel very up sad. They never trusted me and I do not think they had the right attitude to my application. RRT should grant my application.”
I note also that in the affidavit filed at the time of the making of the application to the Court the applicant asserted to have been a Christian for years and asked that the Court give her a “fair” decision.
Before the Court
At the hearing today the applicant appeared in person and was assisted by an interpreter in the Mandarin language. Mr B D Kaplan of counsel appeared for the first respondent.
At both the first Court date and the beginning of the hearing today I sought to emphasise with the applicant that the nature of these proceedings was not designed by law to determine whether Australia owed her a protection obligation, or indeed whether she was a genuine Christian or would suffer harm if returned to China. The question was whether, in deciding adverse to her claims, the Tribunal fell into some “legal error” [jurisdictional error].
The applicant confirmed for the Court that she had not received any assistance in her application to the Court but also confirmed that she had received assistance from the panel lawyer on Court’s “RRT Legal Advice Scheme” who had been assigned for the purpose of providing advice to applicant in relation to these proceedings.
Unfortunately for the applicant, nothing she was able to say to the Court today went to any issue revelatory of any jurisdictional error and whether that was evident in the Tribunal’s decision.
The applicant asked for a “fair” decision from the Court. Simply, the Court is unable to review the merits of her application to be a refugee. Whether the Tribunal made a decision that ultimately, in outcome, was “fair” is beyond the reach of this Court. As has often been said, what applicants of this type are entitled to is a fair process, not necessarily a “fair” outcome (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1; (1990) 64 ALJR 327).
In essence the applicant asserted before the Court that she told truth but the Tribunal did not believe her, and that she was unable to go back to China at present as she was unable to survive there. Nothing in that goes to the question of whether the Tribunal fell into error in the exercise of its jurisdiction. At best the applicant invites the Court to indulge in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 (“Wu Shan Liang”)).
Consideration
I have before me written submissions from the Minister in this matter, prepared by counsel, Mr Kaplan. The submissions address a possible issue in these proceedings that I raised at the first Court date in this matter. They do so in a comprehensive way. (See further below.)
In the meantime, I agree with the Minister’s submissions that the unparticularised stated grounds of the application do nothing more than, also, invite the Court to engage in impermissible merits review (Wu Shan Liang). In essence those grounds assert factual matters put before the Tribunal. On their own the grounds do not indicate, let alone assert, jurisdictional error on part of Tribunal.
Complaints from the Orders Sought
Complaints One and Two
In the first and second complaints the applicant asserts that the Tribunal did not consider that she would be persecuted if she returned to China. In her affidavit, filed at the same time as the application to the Court, the applicant asserts that she has been a Christian for years and implies her application for a protection visa should not have been refused by the delegate or the Tribunal.
I should note in this regard that, to extent that this may seek judicial review of the delegate’s decision, this Court has no jurisdiction to engage in such a review as not only was the delegate’s decision reviewable under Pt.7 of the Act , it was so reviewed (s.476 and s.474 of the Act).
What remains is the applicant’s assertion that the Tribunal did not consider her claims and that she would be persecuted on return to China. This must be rejected as a complaint that would lead to showing jurisdictional error on the part of the Tribunal.
The applicant claimed to fear persecutory harm because of her religious beliefs. Further, that she had been arrested, beaten and detained by the Chinse authorities following a raid on her house, involving her “brothers and sisters”. On the material before the Court, essentially the decision record, the Tribunal considered and dealt with the claims put by applicant both in her application for a protection visa and as reported before the delegate.
Ultimately the Tribunal found that the applicant was not a genuine Christian. The Tribunal based this on its assessment of the applicant’s own evidence, which it found deficient in displaying the level of knowledge commensurate with that of a genuine Christian. As I said to the applicant earlier today, the Tribunal’s finding was reasonably open to it on what before it, and the Tribunal gave cogent reasons (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).
While the Tribunal accepted that her house had been the subject of a raid it found no necessary Convention nexus. That is a connection between the claims made by the applicant, and accepted by the Tribunal, and a ground in the Refugee Convention. The raid conducted by the intoxicated police officers was not related to any religious beliefs held, or perceived to be held, by the applicant. This conclusion again, on what was before it, was reasonably open to the Tribunal to arrive at.
So this is not a case where the Tribunal can be said to have failed to consider a claim expressly made, or clearly arising from the circumstances presented by the applicant’s account if that is what is implicit in the applicant’s complaint that the Tribunal did not consider that she would be in danger if she returned to China (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1).
Complaint Three: “Potential” Bias
This complaint, as the Minister’s submissions address, may be some assertion of bias on the part of the Tribunal member. Amongst other things, such an allegation is a serious attack on the very integrity of the decision maker. That is, an allegation of bias, or apprehension of bias, is not simply some assertion of legal error on the part of the Tribunal but it brings into question the very integrity of that decision maker. For this reason such an attack must be, as is often said, distinctly made and clearly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and per Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). Neither of those circumstances is present in the current case.
The applicant relies only on the Tribunal’s decision record. It would be a rare case in which bias, or even the apprehension of bias, could be made out in such circumstances (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). There is nothing in the material before the Court to even indicate that the Tribunal did not bring an open mind to the review and was not open to persuasion.
Arbiter of Religious Faith?
At the first Court date I did raise with the parties whether there was any issue that the Tribunal acted as arbiter of religious doctrine or religious faith in the way it dealt with applicant’s claims. I was moved to do so in circumstances where the Tribunal’s brief account of what occurred at the hearing appeared to suggest that the line of questioning, when looked at with the Tribunal’s findings, may possibly give rise to a consideration of this question. I referred the parties to Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (“SZLSP”) and in particular to what Kenny J said in that case.
It is important to note again in this context that the applicant did access the Court’s “RRT Legal Advice Scheme”, and was given legal advice. It is not for the Court to delve into the nature of that advice, it is the applicant’s privilege to keep that advice to herself. But what I can note is that, at least and in spite of the opportunity, the applicant has made no reference, either by way of amended application, written submissions, or anything she said to Court today, to the issue of whether the Tribunal acted as arbiter of religious faith in her case.
But what I do have in relation to that matter, and I again thank Mr Kaplan, is the Minister’s submissions on this matter. On looking at all the material before the Court. I can only agree with Mr Kaplan that no error is revealed by the Tribunal’s approach in this regard.
On the evidence available it appears the applicant herself gave evidence that she did not know much about the Christian faith. She had attended church only on a number of occasions and had not read the Bible. I note that this evidence, given to the Tribunal, was generally consistent with what she had earlier told the delegate. The delegate’s decision was not before the Court on the first Court date, but it is now, and the comparison is noteworthy. The paucity of the applicant’s demonstration of her religious involvement and understanding remained unchanged between the interview with the delegate and the hearing with the Tribunal.
In the circumstances it was appropriate and, as the Minister submits, necessary for the Tribunal to question the applicant as to the depth of her knowledge of Christian faith, given after all that this was the basis on which she said she feared persecutory harm if returned to China. Indeed it is a claim which she continues to press before this Court (WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [29] per Mansfield, Jacobson and Siopis JJ and SBCC v Minister for Immigration & Multicultural Affairs [2006] FCAFC 129 at [45] per French, Lander and Besanko JJ).
It must be said that, on the brief evidence available, there is nothing to show that the Tribunal’s questioning operated from a position that all Christians must have a certain level of religious knowledge.
I should just note that the references to the brevity of the Tribunal’s decision record are factual references. If there was evidence otherwise available as to the Tribunal’s approach, for example what otherwise may have been said at the hearing before the Tribunal, it was for the applicant to have brought such evidence (for example by way of transcript), if she was to press this issue of the Tribunal acting as arbiter of religious doctrine. It is important to note that, despite opportunity to seek advice on this matter and how to put evidence before the Court, the applicant has not sought to press this issue, let alone bring any evidence in support.
I agree with Mr Kaplan that, based on the available evidence, the current circumstances do not reveal the type of circumstances that were of concern to the Court in SZLSP. There is ultimately nothing before this Court to show that the Tribunal held some preconceived view of what the correct answer should be as against some unexplained evidentiary basis of what a Christian should know about their professed faith.
Further, as Mr Kaplan submits, it is a strong indicator that the Tribunal has constructed a legitimate review, rather than making a determination based on a preconceived minimum standard of knowledge of religion, that the Tribunal relied on other elements to find adverse to the applicant’s claims, for example the applicant’s own evidence that she had attended church in Australia and China on no more than a few occasions.
Separately again, and as Mr Kaplan submits, the Tribunal also relied on there being no evidence that rogue police officers had any continued interest in the applicant after the alleged events relating to her detention in August 2009. It was the applicant’s own evidence, set out in her initial statement, that she continued to work near her home for two months after her release without suffering any further harmful incident.
In all I am satisfied that no jurisdictional error on the part of the Tribunal is revealed in relation to the question the Court raised at the first Court date.
Conclusion
Unfortunately for the applicant, nothing that she put before the Court reveals jurisdictional error on the part of the Tribunal. After considering the material before the Court I cannot otherwise find any such error on the part of the Tribunal. It is the case that for the applicant to succeed in her application the Court would need, at the very least, to discern some jurisdictional error on part of the Tribunal. Since no such error is evident the application should be dismissed. I will make an order accordingly.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 30 April 2012
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