SZQVL v Minister for Immigration
[2012] FMCA 339
•23 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQVL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 339 |
| MIGRATION – Review of decision of Refugee Review Tribunal – failure to consider evidence – failure to provide applicant with a further opportunity to respond in writing – request for impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424A, 424AA, 425, 430, 476 Federal Magistrates Court Rules 2001 (Cth), Sch.1 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 Minister of Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 273 ALR 122 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 |
| Applicant: | SZQVL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2572 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 23 April 2012 |
| Date of Last Submission: | 23 April 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 11 November 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,527.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2572 of 2011
| SZQVL |
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 today an application made on 11 November 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 19 October 2011, which affirmed the decision of the respondent Minister’s delegate to refuse 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 27 May 2007 on a student visa which was valid until 15 March 2011 (Court Book – “CB” – CB 3). Prior to the cessation of her student visa, on 4 March 2011, the applicant applied for a protection visa (CB 1 to CB 32, with annexures).
Claims to Protection
This application was accompanied by a written statement in which the applicant set out her claims to protection (CB 30 to CB 32). Namely:
1)Some time before 2003 the applicant’s parents converted to Roman Catholicism, which is an “underground” church in China.
2)The applicant re-commenced living with her parents in 2003 and was taken by them to bible study classes and religious services. She “… got to know god gradually” and, in June 2004, commenced attending an underground “catechism class”. On 22 August 2004 she was baptised.
3)In September 2006 the applicant commenced studying at college. She decided to come to Australia to study and arrived in Australia on a student visa in May 2007.
4)On 25 December 2008 the applicant’s aunt telephoned her from China to inform her that her parents had been arrested at a religious celebration and had been detained for twelve days. Her aunt had secured their released by paying a “fine” and her parents were forced to pledge that they would never again attend an underground church. After their release her father lost his job and her mother was forced to close her business.
5)Following this her parents objected to her returning to China. They were also unable to provide her with any monetary support. As a result she was unable to continue studying, but she could not return to China as she would be persecuted and would be unable to practice her religion.
The Delegate
The applicant attended an interview with the Minister’s delegate on 15 April 2011 (CB 33 to CB 35). The applicant was assisted on that occasion by an interpreter in the Mandarin language (CB 50).
Prior to the interview the applicant provided a letter in support of her application from Father Paul McGee (“Father McGee”) of the “Western Sydney Chinese Catholic Community”, dated 10 April 2011 (CB 36). The letter stated that the applicant was a member of the congregation and regularly attended mass in Flemington. Importantly, given the applicant’s claims before the Court, Father McGee said that he had been told by the applicant that she had commenced attending mass in July 2007. The applicant also provided to the delegate various news reports regarding the Catholic Church in China (CB 37 to CB 44).
On 27 May 2011 the Minister’s delegate decided to refuse the application for a protection visa (CB 45 to CB 62).
The delegate considered the applicant’s evidence in relation to significant aspects of her claims to be “…vague, inaccurate and implausible”. Her knowledge of Catholicism was superficial and not commensurate with that of someone who had been baptised and practising since 2004. These findings, coupled with the delay in her applying for a protection visa upon being notified of the alleged arrest of her parents, a period of over two years, led the delegate to conclude that the applicant was not a member of the “underground” Catholic Church in China.
While the delegate accepted that the applicant had been involved in Catholic Church activities in Australia, he found that this conduct was done for the purpose of furthering her protection application. In the context of this finding, the delegate was not satisfied that the applicant would become a member of the underground Catholic Church if returned to China. In all therefore, the delegate was not satisfied that the applicant met the Refugee Convention definition of “refugee”.
The Tribunal
On 14 June 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 63 to CB 66).
Prior to the hearing, on 25 July 2011, the applicant provided a written statement to the Tribunal in which she repeated her claims and expressed her disagreement with the findings, and decision, of the delegate (CB 70 to CB 71).
She was invited to attend a hearing before the Tribunal on 17 August 2011 (CB 68 to CB 69) and did so. She was assisted by an interpreter in the Mandarin language on that occasion. She reiterated her claims for protection ([27] at CB 87 to [32] at CB 88). In addition, the Tribunal raised with the applicant its concerns regarding her evidence. For example, her limited knowledge of the events surrounding her parent’s arrest and detention ([45] at CB 90). (See also the concerns raised at [33] at CB 88, [35] at CB 88, [47] – [49] at CB 91 and [54] – [55] at CB 92.)
The Tribunal decided to affirm the decision of the Minister’s delegate on 19 October 2011 (CB 80 to CB 96). Its findings and reasons are set out in its decision record ([58] at CB 93 to [74] at CB 69), a copy of which was provided to the applicant (CB 79).
The Tribunal considered the applicant’s evidence regarding her Catholic faith to be “vague” and “scant” ([63] at CB 93). Further, her answers to questions regarding her baptism “… gave a clear impression of having been memorised by rote rather than experienced” ([63] at CB 94). The paucity of her knowledge of Catholicism, including her involvement and practice of it in China, coupled with her “implausible” and limited knowledge of her parents’ arrest and detention, led the Tribunal to conclude that neither the applicant nor her parents were members of the “underground” Catholic Church in China. Further, the Tribunal found that the applicant had not been baptised, nor had her parents been arrested or detained by reason of their purported faith
([64] – [66] at CB 94).
The Tribunal’s rejection of the applicant’s claim to be a member of the “underground” Catholic Church was, in its view, supported by the nearly four year delay between the applicant arriving in Australia and applying for a protection visa, and certainly the over two year delay after being told by her parents not to return to China ([67] at CB 94).
The Tribunal also turned its mind to the applicant’s claimed attendance at Church in Australia ([68] – [70] at CB 96). While the Tribunal did accept that the applicant presently attended Church in Australia with some regularity, having regard to the letter provided by Father McGee and the photographs provided by the applicant of her outside St Mary’s Cathedral in Sydney, the Tribunal found that the applicant had commenced practicing Catholicism in Australia proximate to the time of her making an application for a protection visa. Since this was only done for the purpose of furthering her claims to protection the Tribunal disregarded this conduct pursuant to s.91R(3) of the Act ([68] and [70] at CB 95).
In reaching this conclusion the Tribunal considered the letter provided by Father McGee, and specifically the statement in that letter that the applicant had commenced attending mass in July 2007 ([69] at CB 95). It found that the letter could not be used to support the applicant’s claim that she had been attending Church regularly since July 2007 as the applicant herself was the source of that information in the letter and Father McGee was unable to independently remember when the applicant started attending his Church. The applicant’s explanation for this, that is that it was difficult for “Westerners” to recognise Chinese faces, was rejected by the Tribunal.
In essence, while accepting what was on the face of the photographs and stated in the letter, the Tribunal found that what was in these documents was not sufficient to overcome its concerns, otherwise, about the applicant’s credibility.
Application to the Court
The application to the Court sets out the following unparticularised grounds:
“1. Supporting letter written by Fr Paul McGee My Prehearing Submission My Church photos.
2. Weren’t considered properly
3. RRT should give me a final chance in written to address its concerns on my evidences”
I understood the application, at best, to put forward two complaints. First, that the Tribunal had failed to consider the letter from Father McGee, her written submissions and the photographs in support of her claim. Second, that she was denied the opportunity to respond to the Tribunal’s questions and concerns as to her claims for protection in writing.
Before the Court
The applicant appeared before the Court in person. She was assisted by an interpreter in the Mandarin language. Mr O Jones appeared for the first respondent.
The Court had before it the respondent’s written submissions and the evidence by way of the Court Book. Despite orders made at the first Court date providing an opportunity for the applicant, no amended application or written submissions were filed by her.
At the first Court date the applicant indicated that she wished to participate in the Court’s “RRT Legal Advice Scheme”. Given the nature and paucity of the matters asserted in her application to the Court, I pressed upon the applicant the importance of attending upon the panel lawyer appointed under that scheme and to listen carefully to the advice given. The applicant confirmed before the Court today that she had so attended.
It is quite clear that despite attempts by the Court, both at the first Court date and at the beginning of the hearing today, and in light of the opportunity afforded to her by speaking to a lawyer who was engaged in providing advice to her, the applicant has either not understood, or does not wish to accept, the nature of the proceedings before the Court. As I repeatedly sought to explain to the applicant, the Court has not power to revisit the factual findings made by the Tribunal in relation to the merits of her claim to be a refugee.
It is the case, as I sought to explain to the applicant, that the Court, by law, can only be concerned with the question of whether, in making its decision, the Tribunal fell into legal error. Indeed not just any legal error, but an error arising from the exercise of its jurisdiction. The applicant made a number of statements to the Court this morning that simply did not understand, or chose to ignore, that situation.
She stated that the Tribunal considered neither the letter from Father McGee nor the photographs. After I explained to her what relevantly appeared on the face of the Tribunal’s record, and sought clarification from her, it appeared the applicant accepted that her complaint really was that the Tribunal did not accept (rather than “not consider”) what was in the letters and on the face of the photographs.
Otherwise, the applicant asserted that she was a genuine Christian, had been a genuine Christian in China, and that she had attended Church since her arrival in Australia. To the extent therefore that the applicant seeks to challenge the factual findings, including findings on credibility made by the Tribunal, then such a challenge on its own really seeks impermissible merits review by this Court and cannot assist her (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 25 (“Wu Shan Liang”)).
I will return to the matter of Father McGee’s letter and the photographs in a moment.
Complaint One
In relation to the first complaint, I note that the Tribunal is not obliged to refer in its decision record to every piece of evidence before it (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”)).
The obligation on the Tribunal, arising from s.430 of the Act, is to prepare a written statement to record its decision. This requires reference to the evidence and material on which its findings are based (s.430(1)(d) of the Act). But it important to note, in light of the applicant’s complaints, that any failure to do so, on its own, does not lead to jurisdiction error (Minister of Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 at [68] per McHugh, Gummow and Hayne JJ and Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [70] per McHugh J).
It is true that there is an obligation on the Tribunal to consider each claim and aspect of the applicant’s claims that are expressly made or clearly arise from the circumstances presented (WAEE and NABE v Minister for Immigration and Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1) .
In any event, the applicant’s complaint fails at the factual level. In relation to the letter from Father McGee and the two photographs, the Tribunal plainly considered them ([69] – [70] at CB 95). This consideration led the Tribunal to accept that the applicant attended Church in Australia, albeit not for the period the applicant asserted. Further, it accepted that she had attended outside St Mary’s Cathedral on two occasions.
As the Minister submits, the evaluation and weight to be accorded to corroborating evidence is a matter for the Tribunal in the proper exercise of its jurisdiction (Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 273 ALR 122). In the circumstances, it was reasonably open to the Tribunal to find that the letter from Father McGee only served to corroborate her claim to have attended church and to have so attended for a short period. That was after all the extent of her involvement with the Church that Father McGee was able to personally attest to. As to the photographs, the Tribunal took them at face value. The photographs were corroboration of nothing more than that the applicant had stood in front of St Mary’s Cathedral on two occasions.
As to the applicant’s written submission prior to the hearing before the Tribunal (CB 70 to CB 71), the Tribunal plainly considered the matters the applicant asserted there ([26] at CB 87). I note in any event that these submissions were directed to explaining the deficiency in her explanations before the delegate. The Tribunal plainly considered the question of the applicant’s claimed nervousness before it. As to her submissions regarding Church attendance in Australia, the Tribunal plainly considered that as well.
In these circumstances what remains of the applicant’s complaint is that the Tribunal did not accept that this material meant that she should be believed in her claims to have been a Christian Catholic practitioner and that she feared persecutory harm on that basis if she were to return to China. To be fair to the applicant, after further explanation from the Court, she appeared to understand this. In the circumstances this is no more than a request for the Court to engage in impermissible merits review, and to substitute its own findings for those of the Tribunal (Wu Shan Liang). Findings which in any event were reasonably open to the Tribunal to make, and for which it gave reasons (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). No jurisdictional error is revealed in this regard.
Complaint Two
The second complaint arising from the application is that the Tribunal failed to give her a “final” chance, in writing, to address its concerns arising from her evidence.
If this is meant as an assertion of jurisdictional error, or even legal error, on the part of the Tribunal the applicant has failed to explain why this is the case.
Whether regard is had to the statutory code (and I will return to that in a moment), or even procedural fairness at common law, there is no general obligation on the Tribunal necessarily to put its concerns to the applicant for comment in writing.
Quite contrary to the applicant’s claims before the Court today, on the only evidence available to the Court, the Tribunal did put its concerns to the applicant at the hearing. It is important to note that given that the applicant claims that, implicitly, she was somehow taken by surprise by the Tribunal’s decision, these were concerns that, for the most part, mirrored the delegate’s decision. There is nothing to show that the applicant did not know the case against her, and was not given a reasonable opportunity to put her case and to respond. Having sufficiently raised its concerns at the hearing, in the circumstance, there was no obligation at common law for the Tribunal to have written to the applicant or to have exposed a written draft of its analysis to her for comment prior to proceeding to its decision.
In an event, as the Minister submits, this is a case to which Div.4 of Pt.7 of the Act applied. It applied as the exhaustive statement of the Tribunal’s procedural fairness obligations. That is in the sense that the matter complained of by the applicant now is dealt with by Div.4. That is the putting of the Tribunal’s concerns to her (see Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 as to how the operation of this provision is to be understood).
Section 422B of the Act operates in the circumstance to make s.425 the exhaustive statement of the natural justice hearing rule. As I have already said, the Tribunal did put its concerns about the applicant’s evidence to her at the hearing. To the extent that its concerns went to the issue of the credibility of the applicant’s factual account of claimed events in China, then this discharged the Tribunal’s procedural fairness obligation (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 (“SZBEL”)). The central issue that disposed of this review was the Tribunal’s rejection of the applicant’s factual claims to have been a member of an “underground” Church in China, and to have had some involvement with such a Church, including her parents claimed involvement, and the claim that they had been detained and mistreated as a result of their membership. That issue was a live issue as a result of the delegate’s decision. On the relevant evidence available to the Court, indeed the only evidence available to the Court, it is clear that the Tribunal raised that issue, and certainly indicated its concerns in this regard, at the hearing with the applicant (SZBEL).
For the sake of completeness, I also note the reference in the Minister’s submissions in relation to s.424A of the Act. In this regard the Tribunal’s obligation to put information which it considers would be the reason, or part of the reason, for affirming the delegate’s decision, and to do so in writing pursuant to s.424A(1) of the Act, does not include the Tribunal’s adverse conclusions or appraisals, or it concerns about the applicant’s evidence (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]).
As to the remainder of the information, the following reveals no failure of procedural fairness by the Tribunal:
1)Country information relating to the situation of members of “underground” churches in China is exempt from the obligation pursuant to s.424A(3)(a) of the Act. In any event I note the Tribunal put the information to the applicant at the hearing and gave her the opportunity to comment. Thus the Tribunal utilised the facility available to it under s.424AA and s.424A(2A) to discharge any obligation it may have had under s.424A(1) of the Act (SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
2)Information the applicant gave to the Tribunal, including documentary evidence and oral evidence, is exempt pursuant to s.424A(3)(b) of the Act.
3)Written information given to the Minister’s department for the purpose of the protection visa application falls within the exemption in s.424A(3)(ba) of the Act.
In all, complaint two is not made out.
Conclusion
For the remainder, as I said, what the applicant has put to the Court today does not rise above a request for this Court to engage in impermissible merits review (Wu Shan Liang).
I am satisfied that the applicant has been given a fair opportunity, particularly with the reference to the lawyer on the panel of the Court’s “RRT Legal Advise Scheme”, to frame her complaints in a manner that has some relationship to a proper assertion of legal error, and to have had the opportunity to provide evidence to support such claims. The Court cannot do more than ensure that the applicant is provided with such an opportunity.
For the applicant to succeed, the Court would need to discern, at the very least, jurisdictional error in the Tribunal’s decision. No such error is apparent. Therefore the application should be dismissed. I will make an order accordingly.
Costs
It is appropriate that an order for costs be made in the normal course of events. The applicant has said nothing to the Court, nor is anything otherwise apparent to the Court, as to why an order should not be made. I will therefore make the order.
As to amount, I am satisfied that in all the circumstances it is a reasonable amount, being generally guided by what is set out in the Sch.1 to the Federal Magistrates Court Rules 2001 (Cth), but in particular having regard to the actual work done by the Minister’s solicitors. I will make the order in the amount sought.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 1 May 2012
18
2