SZQWI v Minister for Immigration
[2012] FMCA 150
•2 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQWI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 150 |
| MIGRATION – Review of decision of Refugee Review Tribunal –whether decision affected by jurisdictional error – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39 Migration Act 1958 (Cth), ss.65, 91, 425, 430, 474 |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) |
| Applicant: | SZQWI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2666 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 2 March 2012 |
| Date of last submission: | 2 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2012 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Mandarin interpreter |
| Appearing for the Respondents: | Mr Ian Temby |
| Solicitors for the Respondents: | Minter Ellison |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2666 of 2011
| SZQWI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 18 October 2011.
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 claims to protection, an outline of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.
Background
The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 23 April 2008 on a Student visa (subclass 571). The applicant departed legally from China on a passport issued in his own name.
While in Australia, the applicant was granted a further Student visa on 7 October 2008 which was valid until 15 March 2011. After this date, the applicant remained in Australia as an unlawful non-citizen.
On 21 May 2011, the applicant was located by a Compliance Officer of the Department of Immigration and Citizenship and detained pursuant to s.189 of the Act.
On 3 August 2011, the applicant lodged, with the assistance of his migration agent, an application for a Protection (Class XA) visa with the Department under the Act.
On 23 August 2011, the Delegate refused the applicant’s application for a protection visa.
On 31 August 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 18 October 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa to the applicant.
On 22 November 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 Refugees Convention relevantly defines “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 Art.1A(2) of the Convention.
The applicant’s application for a protection visa
The applicant’s claims to fear harm were set out in his protection visa application.
The applicant claimed that as a child he would attend the Church for Prayer with his parents “… who were pious followers of Catholicism.” The applicant claimed that fellow church followers would attend his family residence for prayer. However, on one occasion, a prayer meeting at his family residence was disrupted by “officers of government” who broke into his residence and arrested those at the gathering.
The applicant claimed that “officers of government” forced him, along with others, to change their religious belief and threatened to prosecute them if they continued to practice Catholicism. Consequently, the applicant claimed that he and his family members suffered physical and psychological violence at the hands of officers of the government.
The applicant claimed that his family residence was searched and photographs of his parents’ wedding and of his and his brother’s baptism which had been held in the church were seized. Consequently, the applicant claimed that his and his brother’s study was suspended by the government.
The applicant claimed that he and his family had to move from “time to time”, but the government continued to threaten them. The applicant claimed that his family members in China are still suffering and are under continual threat by the government to change their beliefs.
The applicant claimed that his parents sent him to Australia to continue his study and “also to evade the prosecution from government and lead a happier life.”
The applicant claimed that if he returned to China, he would be detained and persecuted.
The Delegate’s decision
On 12 August 2011, the Delegate invited the applicant to attend an interview, which the applicant ultimately did, on 17 August 2011.
At the interview, the applicant stated that he had been detained by the Chinese authorities at a Christmas party in 2007. The Delegate did not find this account plausible because he made no such claim in his originating application. Further, the Delegate did not find the other claims made in the protection visa application plausible given the country information available.
The Delegate concluded that the applicant did not have a profile in China which would draw the adverse attention of Chinese authorities to him. Further, the Delegate concluded that the applicant lodged his protection visa application in order to prevent or delay removal from Australia, and not because of a genuine fear of persecution in China.
On 23 August 2011, 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.
The Tribunal’s review and decision
On 31 August 2011, the applicant lodged, through his solicitors, an application for review of the Delegate’s decision by the Tribunal.
The applicant provided no further documents in support of his review application.
On 6 September 2011, the Tribunal wrote to the applicant, through his solicitors, inviting him to comment on, or respond to, information that it considered, subject to any comments made by the applicant, would form the reason or part of its reason for affirming the decision under review by 13 September 2011.
The information that the Tribunal invited the applicant to comment on included:
a)The timing of application, the granting and expiration of his Student visa;
b)Timing of his application for a protection visa;
c)Recorded statement at the Compliance Client interview on 21 July 2011 that the applicant could not return to China because of his outstanding debts to friends; and
d)Recorded statement from his interview with the Delegate on 17 August 2011 that he came to Australia because he knew that there was freedom of religion.
This information was said to be relevant to the genuineness of the claims to fear persecution in China, the assessment of the applicant’s credibility, and whether the applicant engaged in religious activities in Australia for the purpose of strengthening his claims to be a refugee.
On 6 September 2011, the Tribunal also wrote to the applicant through his solicitors in a separate letter stating 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 17 October 2011 to give oral evidence and present arguments.
On 9 September 2011, the applicant through his solicitors sent written submissions, including extracts of country information, to the Tribunal. The written submissions also included a Statutory Declaration made on 6 September 2011 by the applicant which provided further explanation as to why the applicant left China and what he fears will happen if he is returned. The applicant stated that the reference in the Delegate’s decision to him being detained at a Christmas party in 2007 was incorrect.
On 14 September 2011, the applicant’s solicitors provided further information to the Tribunal in response to its invitation to respond or comment on certain information. The applicant provided further information in relation to his delay in applying for a protection visa. He also addressed why he did not know if the church he attended with his parents in China was state sanctioned and what he anticipates will happen to him if he returned to China.
On 4 October 2011, the Tribunal sent another letter to the applicant through his solicitors inviting his comments or response to information concerning the claimed detention at a Christmas party in 2007 discussed at the interview with the Delegate and the contradictory evidence detailed in the applicant’s written submissions to the Tribunal. The Tribunal also invited comment on the circumstances leading up to the applicant applying for a Student visa. This information was said to be relevant to the applicant’s credibility.
On 10 October 2011, the applicant’s solicitors responded to this later invitation. The applicant stated that he had not been arrested at Christmas in 2007 because he was a minor. He also provided further information regarding his parents’ protest outside the PSB office and at what stage his parents had applied for a Student visa for him.
The applicant attended the hearing on 17 October 2011, with the assistance of his solicitor and an interpreter. At this time, the applicant provided to the Tribunal an untranslated document which was written in Mandarin. The applicant explained that this was a statement from a priest in China stating that the applicant had been baptised in China and that his family “helped with the church”. He said that the original of this statement was in China and that the document he provided to the Tribunal was a print-out from the internet.
In its “Findings and Reasons”, the Tribunal noted that it did not find the applicant to be a witness of credibility. The Tribunal found the applicant’s evidence to be vague and inconsistent. The Tribunal found the applicant’s explanation of inconsistencies put to him not to be satisfactory. Further, the Tribunal found that “… the applicant’s knowledge of the Catholic faith and practices was minimal and inconsistent with his claim that he had been attending church since [a] young age…”. The Tribunal found the applicant’s knowledge to be inconsistent with his claim to be a committed Catholic who had been attending Church for many years.
The Tribunal’s finding on the credibility of the applicant was further compounded by the applicant’s delay in applying for protection. The Tribunal noted that one of the explanations given by the applicant to explain the delay, that he was too busy with work. The Tribunal found that that response suggested that he had no fear to return to China if he “… considered employment more significant than being able to remain in Australia…”.
Ultimately, the Tribunal comprehensively rejected the applicant’s claims of past persecution in China and found that the applicant had fabricated his claims for the purpose of his protection visa. In light of the Tribunal’s comprehensive adverse credibility findings in respect of the applicant’s evidence and the country information before it indicating that document forgery is common in China, the Tribunal placed no weight on the statement from the purported local priest purporting to confirm the applicant’s baptism.
The Tribunal accepted that the applicant displayed some knowledge of the bible but did not accept that such limited knowledge supported the applicant’s claimed commitment to the Catholic faith or his attendance at a church in China.
The Tribunal did not accept the applicant’s claim that he had attended church in Australia, although it found that his limited religious knowledge had been acquired by him through learning in Australia to assist his application for protection. The Tribunal found the applicant had no commitment to Christianity and was not satisfied that the applicant engaged in any religious activities in Australia in learning about Christianity other than for the purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal disregarded such conduct in accordance with s.91R(3) of the Act.
The Tribunal found that there is no real chance that the applicant would be persecuted for any Convention related reason if he was to return to China and that the applicant did not have a well founded fear of persecution for a Convention reason. Accordingly, the Tribunal affirmed the Delegate’s decision under review.
The proceeding before this Court
The applicant was unrepresented before this Court, although he had the assistance of a Mandarin interpreter.
On 14 December 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 grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this 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 consequently participated in this 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 documents in accordance with the Court’s directions or otherwise, and had no documents to provide to the Court in support of his application.
The applicant confirmed that he relied on the grounds contained in his application filed on 22 November 2011. Subsequently, he told the Court that the grounds had been written by someone else. The grounds are as follows:
“1. Error of law in the decision itself in the manner in which the Refugee Review Tribunal conducted the hearing and matter.
2. Failing to take into account very relevant facts of the matter.”
Each of the grounds were interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
Ground one is unsupported by particulars, evidence or oral or written submissions.
When I asked the applicant what he meant in ground one, the applicant said that he had not written the grounds but that his complaint was that the decision was unfair.
To the extent that ground one appears to allege that the Tribunal failed to conduct its review according to law and was unfair, the relevant documents marked “Exhibit 1R”, including the Tribunal’s decision record, do not bear out that contention.
It is clear from the documents before the Court that, following the applicant’s filing of his application for review of the Delegate’s decision, the Tribunal wrote to the applicant informing him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case. That letter complied with the legislative regime required by ss.425 and 425A of the Act. Further, the Tribunal wrote to the applicant on three separate occasions inviting additional information, all of which complied with the legislative regime.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal complied with s.430 of the Act in setting out its decision, reasons, findings on material questions of fact and referring to the material on which those findings were based.
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 11 December 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.
The Tribunal referred to the relevant law in making its decision. The Tribunal accurately summarised the applicant’s written claims and explored those claims with the applicant at a hearing. The Tribunal noted in detail the substance of the applicant’s interview with the Delegate and referred in detail to various written submissions made to it by the applicant and his representative.
The Tribunal’s decision record makes clear that on 17 October 2011, when the applicant appeared before the Tribunal to give evidence and present arguments, the applicant was represented.
The Tribunal noted in detail the exchanges it had with the applicant at the hearing, including matters of concern that it put to the applicant about his evidence and noted the applicant’s responses. As stated above, ultimately, the Tribunal found the applicant not to be truthful. The Tribunal found his evidence to be vague and inconsistent and his explanations unsatisfactory.
The Tribunal set out its specific concerns in significant detail, particularly in relation to the applicant’s claims of family persecution in China by reason of their Catholicism. The Tribunal found the applicant’s knowledge of Catholicism to be minimal and inconsistent with his claim to have attended church since a young age and inconsistent with any commitment to Catholicism. The Tribunal found the applicant’s delay of three years in lodging his protection visa application in circumstances where it was lodged after his student visa had expired and he was detained, to be inconsistent with a genuine fear of harm. As stated above, ultimately, the Tribunal found that the applicant had fabricated his claims for the purpose of his protection visa.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. 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).
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
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]).
In the circumstances, the applicant’s complaint that the Tribunal’s decision was unfair is more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54; 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).
Accordingly, ground one is not made out.
Ground 2
Ground one is unsupported by particulars, evidence or oral or written submissions.
Again, the applicant said he had nothing to say about ground two and that it had been prepared by someone else.
In light of the applicant’s denouncement of ground two and the findings of the Court in ground one, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal failed to take relevant facts into account. As stated above, the Tribunal’s decision record considered in some detail the applicant’s claims in support of his protection visa application but was not ultimately satisfied of their veracity.
Section 65 of the Act makes clear that if the relevant decision-maker, in this case the Tribunal, is not satisfied that an applicant meets the criteria for being a refugee that decision maker must refuse to grant a protection visa.
Accordingly, ground two is rejected.
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 a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence, both orally at the hearing and in writing, and noted the applicant’s responses. 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 seventy-two (72) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 2 March 2012
0
12
2