SZRNO v Minister for Immigration - [2013] FMCA 167

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNO v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 167

MIGRATION – Review of decision of RRT – whether Tribunal was required to provide the applicant an opportunity to respond to independent country information – whether Tribunal considered complementary protection criteria under s.36(2)(aa) – whether Tribunal was under a duty to enquire.

Migration Act 1958 (Cth), ss.36(2)(aa), 422B, 424A

SZRJX v Minister for Immigration & Anor [2012] FMCA 1220
Minister for Immigration & Anor v SZGUR (2011) 241 CLR 594

Applicant:

SZRNO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1227 of 2012

Judgment of:

Raphael FM

Hearing date:

28 February 2013

Date of Last Submission:

28 February 2013

Delivered at:

Sydney

Delivered on:

28 February 2013

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1227 of 2012

SZRNO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who came to Australia on 16 May 2011 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 24 August 2011. On 31 October 2011 a delegate of the Minister refused to grant a protection visa and on 25 November 2011 the applicant applied for review of that decision from the Refugee Review Tribunal. He attended a hearing before the Tribunal and gave evidence to it. On 7 May 2012 the Tribunal determined to affirm the decision under review.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of religious belief. The applicant told that he was a member of a Christian family and had taken an interest in Christianity since about the age of eight. His claims are succinctly set out by the Tribunal at [64] of its reasons:
“[64]The applicant claims that he was persecuted by the government in China because of his Christian beliefs. He claimed to have fled to Australia because he had no other choice. He claims to have been born in to a Christian family and attended the underground church activities with his parents from the time he was a child. His parents had told him of the torture of other Christians in China. He claimed to have a strong interest in the Bible form the age of 13. Soon after, he had his first personal experience of coming to adverse attention because of his believes when he was threatened with expulsion from school after he was reported for having a Bible. His school results suffered. When he met his wife in 1988 she told him that she was also a Christian and she encouraged him to believe in God again. He claimed his wife was the organizer of the underground church which he attended with her. In 2002, while he was on a business trip, his wife was arrested and detained for 3 days. In July 2010 she was again arrested and sentenced to 30 days in a workhouse. He and others were arrested at the time; he was detained for 15 days during which time he was tortured. On release he was obliged to attend a political study class.”
The Tribunal questioned the applicant upon his claims. He told that he and his wife had two children, the second having been born in 2002 and for whom he and his wife paid a social compensation fine of 15,000.00 Yuen. He was questioned about his knowledge of Christianity, about his attendance at church in Australia and about his reading of the Bible both in China and in Australia. The applicant advised the Tribunal that neither he, nor his wife, nor his children, have been baptised and told that he had been unable to find a Chinese Church in Australia although he had heard about one in Ashfield. The applicant told the Tribunal that his wife had not been troubled since her return to China from the same trip to Australia which he left to make his claim; but said that if he returned he believed that he would be persecuted.
In its findings and reasons commencing at [63] [CB 91] the Tribunal indicated at [67] its rejection of the applicant’s claims to have had a strong Christian belief and found that his evidence was inconsistent and unreliable. The inconsistencies are all set out in the Tribunal’s decision record. The Tribunal concluded that these inconsistencies strongly indicated that the applicant had manufactured evidence particularly about meetings of the underground church and meetings in his own home. The Tribunal noted that, notwithstanding the applicant’s claim that both he and his wife had been arrested and detained, they were permitted a few months later to make a trip to Australia which their employer company had guaranteed. The Tribunal made reference to certain independent country information:
“[71]The Tribunal consulted independent country information regarding the treatment of Christians in China, in particular, in relation to reports of crackdowns affecting the employment prospects of members of underground churches. A July 2011 ChinaAid report wrote that officials pressure [church members] employers to fire Christians. A 2011 report on the Barnabas Fund (a Christian support group) website claimed that, in general, ‘Christians are denied access to almost all high-level jobs.”
The Tribunal was critical of the applicant’s knowledge of Christianity arising from the questions that he had been asked. This is always a difficult matter because the Tribunal is not an arbiter of religious belief but is, at the same time, entitled to test an applicant’s knowledge of the faith that he claims to hold. The Tribunal felt that the applicant’s state of knowledge was inadequate for a person who had claimed to have attended Christian gatherings from childhood and to have read the Bible on and off since 1989. The Tribunal was concerned at the failure of the applicant to have been baptised notwithstanding his strong claim to the Christian faith.
At [CB 94] the Tribunal found:
“[77]For the reasons given above, the Tribunal is not satisfied that the applicant has given a truthful account of his circumstances in China and considers that his claims lack credibility and are indicative of a set of claims that have been manufactured in an attempt to provide a basis for refugee status in Australia. The Tribunal is not satisfied that the applicant had any involvement with the Christian community whilst in China and does not, therefore, accept that he was arrested, detained or mistreated in China. The Tribunal is not satisfied that the applicant departed China otherwise than in a lawful manner. The Tribunal is strongly of the view that the applicant was able to depart China in a lawful manner because neither he nor his wife, nor his parents had an adverse profile in China. It follows that the Tribunal does not accept that the applicant was sought by the authorities for involvement in underground Christian activities whilst in Chin, or that there is a real chance that he will have any difficulties for this reason upon his return to China.”
A the commencement of the Tribunal’s decision record it makes reference to the complementary protection criteria now found in s.36(2)(aa) of the Migration Act 1958 (Cth)[1] [18 to 20] [CB 84]. At [CB 95] of its reasons the Tribunal says:
“[83]Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under s. 36(2)(aa).”
[1] “Act”
On 5 June 2012 the applicant filed an application with this court seeking review of the Tribunal’s decision. There were two grounds of application. The first related to the Tribunal’s reliance upon the Barnabas report which claimed that Christians were denied access to almost all high level jobs. The applicant alleged that he was not provided with a fair opportunity to respond to this information. The information upon which the Tribunal relied was independent country information that was not specifically about the applicant or another person and was just about a class of persons to which the applicant belonged. The Tribunal’s duty to provide natural justice in the provision of a review is now codified under division 4 of the Act commencing with s.422B which is in the following form:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
Under s.424A the Tribunal is required to provide an applicant with particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, but there are exceptions to that requirement and one of them is the type of independent country information to which I have referred. For this reason, the applicant’s ground 1 of application cannot succeed.
The second ground of application is in the following form:
“RRT has not considered the applicant’s risk of being harmed after returning to China against the complementary protection criterion except a mere mentioning of it in the decision record para83. RRT didn’t provide any evidence or reason for its consideration of the complementary protection criterion. It is a breach of the Migration Act and the procedural requirement for ignoring the complementary criterion.”
In SZRJX v Minister for Immigration & Anor [2012] FMCA 1220[2] I gave some consideration to what was required from the Tribunal in considering the complementary protection obligations. In that case it was accepted that the Tribunal had failed to consider section 36(2)(aa) but it was said that there was no need for this to be done because it was quite plain from the decision record that the applicant had no grounds for asserting complementary protection because the whole basis of his claims had been discounted by the Tribunal. I said at [12]:
“[12]The Minister relies on the second limb of that statement arguing that the Tribunal rejected the whole foundation of the applicant’s claims and in so doing necessarily rejected the only premise upon which a complementary protection claim could have been based; the circumstances that caused him to depart China. Having made those findings, the Minister argues, the Tribunal was relieved of the need to consider any other claims which rested on the same account of the applicant’s circumstances.
[13]In the circumstances of this particular case the argument is attractive but I do not think it is sustainable. The requirement to consider complementary protection is a mandatory one formed by a reading of ss.36 and 65. The Minister cannot consider whether the other criteria for the visa prescribed by the Act have been satisfied (65(1)(a)(2)) unless the Minister considers the complementary protection requirement in s.36(2)(aa). And it is accepted that this was not considered.
[14]It is to be remembered complementary protection requires a real risk that the non-citizen will suffer significant harm whereas the protection visa criteria is that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugee’s Protocol. That there is a real difference between these two criteria is clear…”
[2] “SZRJX”
The difference between that case and the one presently before me is that at [83] the Tribunal indicates that it has considered s.36(2)(aa). It is always open to a court to find that although a statement of that type has been made by a Tribunal it cannot be satisfied that the Tribunal did properly engage with its duties under a particular section. And in cases such as SZRJX where it was said that the applicant’s claims were not convention related it is my view that there is a duty to do more than make a plain statement such as the one contained at [83].
However, this is not that case. The applicant made a series of claims which were convention related. The Tribunal, as it was entitled to, came to a conclusion that it did not accept any of them. It simply did not believe the applicant. Having not believed the applicant it concluded that the things he said happened to him did not happen. If nothing happened to him then he was not in any danger should he return. If he was not in any danger should he return he would not be a person to whom Australia owed protection obligations under the complementary provisions because it could not be said that there was a real risk that he would suffer significant harm as a result of being removed from Australia.
It is always preferable for a Tribunal to make findings that can be comprehensively understood by those persons who they most immediately affect. It was quite reasonable for this applicant to make the claim that he did under [2] of his grounds of application. But that does not mean that the ground should succeed. I would find that it does not.
The applicant appeared before me today. He stated in response to my question as to why he believed the Tribunal had made an error of law in the manner in which it reached its decision that the Tribunal did not believe that what he had said was true. This is no more than to be seeking merits review from this court which is impermissible. He then stated that he believed that the Tribunal did not conduct a careful investigation. He said that nobody investigated in China what he had said. The requirements upon a Tribunal to make inquiries of this type has been considered by the High Court in Minister for Immigration & Anor v SZIAI (2009) 259 ALR 429, where the court, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [1]:
“The class of “RRT-reviewable decisions” includes decisions by delegates of the Minister for Immigration and Citizenship (“the Minister”) refusing the grant of protection visas.2 In the exercise of its review function, the Tribunal may obtain such information as it considers relevant.3 In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.”
At [25] the court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
See also Minister for Immigration & Anor v SZGUR (2011) 241 CLR 594, per French CJ and Kiefel J at [1] and [20] and per Gummow J at [86].
I am not satisfied that in the instant case there was anything that would have required the Tribunal to make the type of inquiry suggested by the applicant. It is for the applicant to satisfy the Tribunal that he does have a well founded fear of persecution for a convention reason and it is not for the Tribunal to go out and make its own inquiries as to his claims. If he does not make them sufficiently comprehensive to satisfy the Tribunal then his application will fail. For the above reasons I am unable to provide a review to this applicant.
I dismiss the application. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 8 March 2013