SZRDG v Minister for Immigration - [2012] FMCA 839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRDG v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 839

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 424A, 425

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68
SZMXS v Minister for Immigration and Citizenship [2009] FCA 1542

Applicant:

SZRDG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 287 of 2012

Judgment of:

Barnes FM

Hearing date:

3 September 2012

Delivered at:

Sydney

Delivered on:

3 September 2012

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 287 of 2012

SZRDG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 13 January 2012. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of the People’s Republic of China (PRC), first arrived in Australia in July 2007 on a student visa. She was subsequently issued with a further student visa which was valid until 18 April 2011. She departed Australia between January and March 2011. She applied for a protection visa on 21 April 2011.
In a statement accompanying her protection visa application, the applicant claimed to fear persecution in the PRC as a Christian. She claimed in particular that her fear arose because while visiting China during 2011 she was handed a promotional flyer praying for the future of China. Afterwards she was stopped by a stranger, interrogated and taken to the police station. She claimed she was suspected of distributing the flyers. She was released after half a day’s interrogation. She claimed that she then searched for the information on the flyer on the computer and sent that information to a friend. After she returned to Australia she was told that her computer had been searched by “some people” who came to her home, and that her family “was in trouble [because] the computer contained emails that might cause social disorder”. She also claimed that back in Australia she saw news in the newspaper and on the internet about the incident which she sent to her friends in China. She claimed she later found out that their emails had been hacked and they were arrested and that she was worried that she was on a blacklist. She also claimed that if she returned to China, she intended to continue to “spread gospels” and “hold [her] belief” and that she would be harmed for doing so.
The applicant attended an interview with a delegate of the first respondent. Her application was refused by the delegate, and she sought review by the Tribunal. The only evidence before the Court of what occurred in the interview with the delegate is in the delegate’s account and the Tribunal’s account. The delegate found that the applicant “ha[d] provided no evidence that she [was] a Christian” and demonstrated “a great deal of confusion” about Christian doctrine and practice.
The applicant attended a Tribunal hearing on 30 November 2011. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The applicant provided the Tribunal with copies of photographs taken of her engaging in what she claimed to be church activities in Australia. The Tribunal recorded that she claimed to be a Jehovah’s Witness.
After the hearing the Tribunal wrote to the applicant, apparently pursuant to s.424A of the Migration Act1958 (Cth). It invited the applicant to comment on inconsistencies in the evidence she had given to the Department and at the Tribunal hearing and also put to her that she had “demonstrated limited and superficial knowledge regarding [her] religious beliefs and activities”. The applicant provided a response to the Tribunal, which was described as an explanation in both Chinese and English, and appears to consist of an explanation in English and some documents in Chinese which are untranslated, albeit one of the documents bears a handwritten note “Date of delivery” beside what appears to be a date recorded as “2011/4/5”.
In its findings and reasons, the Tribunal set out the claims made by the applicant to the Department and what occurred at the Tribunal hearing. The Tribunal summarised the applicant’s claims as a claim that she was a Jehovah’s Witness who “intend[ed] to proselytise in the future”. It recorded her claim that while she was visiting China in 2011 she was taken by the authorities and questioned regarding her involvement in the distribution of a flyer, that she researched the movement advertised on the flyer and sent the information to a friend in China and that she sent more information against the PRC government to her friend in China after she returned to Australia. The applicant claimed her friend in China who received the information was later arrested and that she (the applicant) “had been identified as the source of the information” and that the authorities in China were “seeking to detain her for her political activities against the PRC government”. She also claimed that she was a committed Jehovah’s Witness and that she would be prevented from practising her religion in China.
The Tribunal was not satisfied that the applicant had “provided a credible account of her circumstances”. It formed the view she had “fabricated” her main claims regarding political opinion and religion “in the belief that it would enable her to obtain a protection visa”. The Tribunal considered the applicant’s claims in relation to religion. It formed the view that on her evidence she had “demonstrated limited and superficial knowledge” regarding Christianity and the beliefs of Jehovah’s Witnesses. The Tribunal found that it was not apparent from the applicant’s evidence to the delegate that she “realised” she was a Jehovah’s Witness.
The Tribunal also had regard to the fact that while the applicant had stated that she wanted to talk about religion and discuss her beliefs, when she was provided with the opportunity to discuss these matters at the hearing it was apparent that she had “little evidence to present in this regard”.
The Tribunal stated that it had considered the applicant’s comments (and this is apparently a reference to her response to the s.424A letter) that “she was nervous at the interview and the hearing; that she required more time to learn about her religion; and that communication difficulties prevented her from articulating her claims”. However, the Tribunal was of the view that if the applicant “had a genuine interest in religion” and had been learning about it “for almost one year” as claimed, she would have been able to provide more information regarding her religion and beliefs. It did not accept as credible the applicant’s claim that she had a genuine interest in religion or that she was a Christian or a Jehovah’s Witness. It found these claims were “fabricated … to enhance [the] protection visa application”.
The Tribunal accepted that the applicant had attended religious activities in Australia, but was not satisfied that she did so because she had a genuine interest in Christianity or religion. It disregarded that conduct in accordance with s.91R(3) of the Migration Act. In view of the Tribunal’s finding that the applicant did not have a genuine interest in religion, it did not accept as credible the associated claim that she would seek to proselytise in the future. It found that claim was also fabricated.
The Tribunal also considered the applicant’s claim about attracting the interest of the authorities while in China in 2011 and that she was “a person of interest to the authorities” because she was implicated in anti-government activities. It addressed her claims that she distributed information to persons in China and after she returned to Australia which came to the attention of the authorities and that the friend who received the information was subsequently arrested for having “anti-government literature” and “the applicant was identified as the source of the information”.
However, the Tribunal had regard to the fact that “[t]he applicant’s description of these matters ha[d] changed over time” in the manner that it had brought to her attention in the s.424A letter. It did not accept her explanation that such inconsistencies (for example as to whether she was detained and whether she sent information to friends from her computer in China or Australia) “arose because of communication difficulties or nervousness”. It was of the view that if the applicant was a person of “adverse interest to the authorities” and feared harm for this reason she would “recall and repeat the claim consistently” throughout the process of application.
The Tribunal found that the inconsistencies arose because the applicant fabricated these claims and was unable to recall and repeat the same claims throughout the visa application process. It did not accept as credible her claim that she distributed information to persons in China, that the authorities had seized the information or that she was of adverse interest to the authorities. Nor did it accept that a friend of the applicant was arrested by the authorities because she received anti-government literature from the applicant. It found that these claims were fabricated to enhance the visa application. The Tribunal was not satisfied there was a real chance the applicant would be “subjected to persecution by the authorities in China for reasons of religion or political opinion or any other Convention reason”. It affirmed the decision under review.
The applicant sought review by application filed in this court on 9 February 2012. She did not file an amended application or written submissions. Nor did she take the opportunity given to her by virtue of the directions to file any affidavit evidence. In oral submissions today she in essence reiterated matters that were raised in her application. I have considered her application and also her oral submissions.
The first ground is that the Tribunal member was “very unprofessional”, did not allow the applicant to “finish her answear (sic)” and “always stopped [her] half way”. The applicant claimed he had “strong prejudice” against her. There is a clear overlap with the fourth ground which is that “[t]he member’s unprofessional and terrible attitude are not tolerant (sic)”.
In oral submissions the applicant reiterated her concerns about the Tribunal member’s conduct of the hearing. She suggested that his attitude towards her had been very rude and that she did not think he took the evidence very seriously, that he was impatient and perhaps did not like her evidence and that he put up his hand to stop her during answers and did not want to continue to listen to her evidence. She took issue with what she characterised as an initial unwillingness on the part of the Tribunal member to have regard to a certificate of high school study which she showed him. She also took issue generally with the manner and tone adopted by the Tribunal member. She claimed that she received the impression that her claim was dealt with in a hasty manner.
However, as pointed out in submissions for the first respondent, the only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s summary in its reasons for decision. That summary does not support the applicant’s assertions about the conduct of the hearing.
On the contrary, the Tribunal record indicates that it raised issues of concern with the applicant and gave her an opportunity to comment on such issues and raise any other reasons which prevented her from returning to China. Indeed, when she neglected to mention her claims in relation to her activities and computer use in China, the Tribunal prompted her in that respect, reminding her of her earlier claim. It gave her the opportunity to elaborate on and to address inconsistencies in her evidence to the Tribunal and to the Department.
The Tribunal asked the applicant about religion, asked her for clarification and gave her a further opportunity to comment. It put to her its concern that she appeared to have a limited and superficial understanding of her religion.
The Tribunal observed that the applicant had “indicated several times that she had not been given an opportunity during the hearing to talk about being a Jehovah’s Witness”. However, the Tribunal also indicated that when it asked the applicant what she wanted to say about being a Jehovah’s Witness she “did not provide a coherent response”. Despite this, the Tribunal told her not only that it would write to her about some of the “issues” raised, but also that when she responded she could “provide any information she wanted to provide” and that if she wanted to provide further evidence about being a Jehovah’s Witness she could provide that information in her response.
The Tribunal also recorded that when the applicant stated that “she had more to say”, she was given an opportunity to make final comments and did so. However, after some discussion about Jehovah’s Witnesses’ attitude to blood transfusions, she failed to answer questions from the Tribunal in that regard.
As indicated above, the Tribunal subsequently wrote to the applicant and in that letter it referred to her claims about communication difficulties and nervousness and gave her an opportunity to respond. It had regard to her explanations for inconsistencies in that respect.
The evidence before the Court is not such as to support any allegation of either actual or apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17).
To the extent that these grounds involve an allegation of bad faith or bias, the applicant has not met the requirement that such a serious allegation be firmly and distinctly made and clearly proven. It is well-established that it is a rare case in which a court will find bias based simply upon the decision-maker’s reasons. On the evidence before the Court this has not been made out. It has not been established that the decision-maker prejudged the applicant’s claims merely from the fact that he raised issues of concern with the applicant at the hearing or thereafter. Nor is this a case in which an apprehension of bias is apparent from the perspective of the appropriately informed, reasonable, hypothetical lay observer with knowledge of the matters in question and the procedures of the Tribunal (see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 and Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51).
Neither ground one nor ground four is made out on the material before the Court.
The second ground is a broad allegation that the Tribunal considered the case “unfairly”. Insofar as the applicant takes issue with the Tribunal’s failure to accept her claims, she seeks impermissible merits review. Credibility findings are a matter for the Tribunal and in this case were open to the Tribunal on the material before it for the reasons which it gave.
Insofar as this might be taken to amount to a contention that the Tribunal failed to comply with its obligations under Division 4 of Part 7 of the Migration Act it is not made out. There is nothing in the material before the Court to suggest any failure by the Tribunal to comply with s.424A of the Act. The Tribunal wrote to the applicant about the oral evidence she had given to the Department. Insofar as it raised in that letter other matters that may not be within the terms of s.424A(1) of the Act (such as the Tribunal concerns about her level of knowledge of religious beliefs and her activities) no error is established in a Tribunal putting matters to an applicant that are not, strictly speaking, within s.424A (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68).
Nor on the material before the Court is there anything to suggest any failure by the Tribunal to comply with the obligation under s.425 of the Migration Act, in particular, to put determinative or dispositive issues to the applicant. On the contrary, it appears that the Tribunal did raise issues of concern with the applicant in the course of the hearing.
Contrary to the claim that the applicant made today, it has not been established that she did not have the requisite opportunity under s.425 to give evidence and present arguments in relation to her claims. More generally, I note that she had the opportunity to provide further evidence to the Tribunal after the hearing including in relation to being a Jehovah’s Witness.
One possible issue does arise on the material before the Court because accompanying the applicant’s response to the s.424A letter are a number of untranslated pages in Chinese which the applicant today suggested constituted a QQ record that she sent back to China on 5 April 2011. However the applicant was advised by the Tribunal on a number of occasions, including in the s.424A letter, that if she wanted to provide comments or responses in a language other than English it had to be accompanied by an English translation from an accredited translator. A similar warning was included in the application for review form which was signed by the applicant. Further, in the invitation to the hearing, the Tribunal reminded her that any document or written argument sent to the Tribunal should be in English or translated.
In her response to the Tribunal’s s.424A letter the applicant stated that she sent the information back to China – “refer to QQ record I sent on the 5^th April 2011” – and then went on to explain her inconsistent evidence during the interviews. However she also claimed:
If it was raised up during the RRT, I surely would have given more explanation and supplementary descriptions. For the QQ record I sent back to China, as my computer was hacked, all the record was damaged and disappeared.
In these circumstances, there was no obligation on the Tribunal either to make further enquiries in relation to the Chinese language document provided to it or to obtain a translation of the document. This is not a case in which it can be said that the Tribunal was under an obligation to make inquiries in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39. In circumstances where the Tribunal had advised the applicant of the need to have documents translated into English it was not under an obligation to translate these documents in light of the applicant’s response to the s.424A letter (see SZMXS v Minister for Immigration and Citizenship [2009] FCA 1542 at [23] – [24] per Flick J).
It has not been established that the Tribunal failed to comply with any of the obligations in Division 4 of Part 7 of the Migration Act or that it otherwise considered the case unfairly in a manner constituting jurisdictional error.

The final ground is that the Tribunal did not consider the applicant’s “situation in China” and that she would “be put in jail if [she] went back”. The Tribunal did consider the applicant’s claims in this respect. As indicated, if the applicant seeks merits review, merits review is not available in this Court.
In submissions in reply the applicant contended that at the Tribunal hearing she had wanted to elaborate on the information she sent from Australia, but the Tribunal was not patient and refused to give her the opportunity to do so. As indicated, that is contrary to the Tribunal’s account of the hearing. Further, the Tribunal expressly gave the applicant the opportunity to provide further information after the hearing.
Insofar as the applicant endeavoured to provide an explanation for her limited religious knowledge, she seeks impermissible merits review. The concerns that she raises do not establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 18 September 2012