SZSMC v Minister for Immigration

[2013] FCCA 575

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 575

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error whether Refugee Review Tribunal approached its decision making as an arbiter of the applicant’s claimed religion– no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8

Cases Cited:
Minister for Immigration and Citizenship v SZLSP [2010] FCAC 108

Applicant: SZSMC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 14 of 2013

Judgment of: Judge Emmett

Hearing date: 20 June 2013

Date of Last Submission: 20 June 2013

Delivered at: Sydney

Delivered on: 20 June 2013

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter    

Solicitors for the Respondents: Ms B. Rayment
Sparke Helmore Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 14 of 2013

SZSMC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application 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 of the Refugee Review Tribunal dated 12 December 2012 and handed down on 12 December 2012 (“the RRT”).

2. The applicant claims to be a citizen of the People’s Republic of China and of Yi Guan Dao faith and Han ethnicity.

3. 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 protection visa application claims and the decision of the delegate of the First Respondent and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 28 July 2007 having departed legally from China on a passport issued in her own name and a subclass TU-571 (Student) visa which expired on 15 March 2010.

2. The applicant has been an unlawful non-citizen since the expiry of her student visa and was detained at Villawood Immigration Detention Centre on 31 August 2012.

3. On 28 September 2009, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.

4. On 29 October 2012, the Delegate refused the applicant’s application for a protection visa.

5. On 1 November 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

6. On 12 December 2012, the RRT affirmed the decision of the Delegate not to grant a protection visa.

7. On 7 January 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to 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, is 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.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s application for a protection visa

1. The applicant provided a statement in support of her protection visa application in which she stated the following: 

   a)The applicant is a devoted follower of Yi Guan Dao. The applicant was taught this religion as a child by her parents.  Yi Guan Dai is a religion forbidden in China.

   b)In about 2004 or 2005, the applicant’s uncle became ill. The applicant and her family’s only option to help her uncle, was to pray and perform a ritual for Buddha. Whilst praying at a temple, some police officers arrived and started beating the applicant and her family as well as destroying items in the temple.

   c)The police arrested the applicant’s parents and forced them to say that their religion was an evil cult and that they were committing heresy. The applicant had to spend a lot of money to bail her parents out. Following this incident, the authorities continued to come to the applicant’s home and harass her family. The authorities would damage their belongings and threaten them.

   d)Since arriving in Australia, the applicant has been practising Yi Guan Dao. She fears that if she were to return to China, she will be physically and psychologically persecuted by the authorities.

The Delegate’s decision

1. On 16 October 2012, the applicant attended an interview with the Delegate.

2. On 29 October 2012, 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 under the Convention.

3. The Delegate asked the applicant questions about her religion and concluded that her responses were superficial. The Delegate noted that the applicant was unable to tell the Delegate what the name of her religion meant to her. Further, the Delegate concluded from the applicant’s five year delay in seeking protection that the applicant did not genuinely fear harm. The Delegate asked the applicant to provide evidence corroborative of her claim to have attended a temple in Belmore in Australia. However, the Delegate received only an email from the applicant’s migration agent giving the address of the temple. The Delegate did not accept that the applicant had been attending a temple in Australia.

4. The Delegate found the applicant’s answers to questions not to be spontaneous and forthright on numerous occasions and to be lacking in detail.

The Tribunal’s review and decision

1. The applicant provided no further documents in support of her review application.

2. On 12 November 2012, the RRT wrote to the applicant informing her that the RRT 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 10 December 2012 to give oral evidence and present arguments.

3. On 10 December 2012, the applicant attended the RRT hearing and gave evidence.

4. The RRT found the applicant was not a witness of truth.

5. The decision of the RRT is accurately summarised by the solicitor for the First Respondent in written submissions as follows:

   “12. In a decision dated 12 December 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa: CB 120-142.

   13. On the basis of adverse credibility findings, the Tribunal found that the applicant was not a follower of the Yi Guan Dao religion in China or in Australia: CB 140, par 113. The Tribunal’s findings were open to it as the sole arbiter of the facts. It found that the applicant’s evidence regarding her claimed religion was “superficial in nature” and, in some cases, contradictory to independent evidence: CB 139, par 106. For example, the Tribunal found that the applicant’s level of knowledge of the Yi Guan Dao religion did not accord with that of an individual who claimed to have been a follower since childhood, who would be expected to have known the number of basic rituals and to have been able to name them: CB 139, par 106. It was open to the Tribunal make this finding based on perceived deficiencies in the applicant’s knowledge of Yi Guan Dao doctrine, as the particular elements of religious doctrine in question were elements that an adherent to Yi Guan Dao in the applicant’s claimed position might be reasonably expected to know.[1] The Tribunal was also not satisfied that the applicant had attended a Yi Guan Dao temple in Australia, noting the applicant’s lack of documentary evidence to support this claim: CB 139, par 107.

   14. The Tribunal also considered the applicant’s inconsistent evidence regarding the alleged arrest incident in 2005 “severely undermines the credibility of her claim”: CB 138-139, pars 103-104. The Tribunal also considered it “implausible” that the applicant’s parents would be released after only 15 days in light of the adverse attitude of the Chinese authorities towards the religion, and that 5000 RMB was a modest a sum to secure the release of two people: CB 139, par 105. For these reasons the Tribunal found that the applicant and her family did not come to the adverse attention of the Chinese authorities, that the applicant’s parents were not arrested and detained, that the applicant was not knocked unconscious or taken to the police station, and that no bond was paid: CB 140, pars 113-114. The Tribunal also found that the police did not come to the parents’ home from time to time, nor did they prevent the applicant’s parents from relocating: CB 140, par 114.

   15. The Tribunal also found that the applicant did not leave China to avoid persecution and did not accept her reasons for the delay in her applying for protection: CB 140, pars 110-112. The Tribunal found that the applicant had failed to apply for protection prior to being taken into detention, that she failed to make inquiries about options available to her when her last substantive visa expired, and that her husband, for whom she helped procure a lawyer, applied for protection in 2012: CB 140, pars 110-112. It was open to the Tribunal to take into account the applicant’s delay in lodging her application for protection as a relevant factor when assessing an applicant’s fear of persecution and credibility.[2]

   16. Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or that there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed to China, there was a real risk that she would face significant harm: CB 140, par 115.”

   [1] Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 per Kenny J at [39].

   [2] SZJYM v Minister of Immigration and Anor [2008] FMCA 652 at [61]

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter. 

2. On 7 March 2013, the applicant attended a directions hearing before Registrar Chuan Ng. 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 RRT hearing, as well as submissions in support.

3. At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice 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 her own language.

4. At the commencement of the hearing, the applicant confirmed that she had no further documents to present to the Court this morning in support of her application.

5. The applicant confirmed that she relied on the ground contained in an amended application filed on 20 March 2013 as follows:

   “1. The second respondent (The Tribunal) constructively failed to exercise its jurisdiction in that the Tribunal asked itself the wrong question concerning the applicant’s claim to be a Yi Guan Dao adherent and practitioner.

   Particulars

   a. In considering the first applicant’s claim to a Yi Guan Dao adherent and practitioner, the Tribunal, at Court Book 139, RRT [106], arbitrarily imposed and applied a standard comprising the possession of certain knowledge of the Yi Guan Dao religion which it required the applicant to meet;

   b. This knowledge was the names and number of five rituals said to be common to Yi Guan Dao gatherings according to country information set out in Court Book page 136, RRT [92]-[93];

   c. In effect the wrong question the Tribunal asked itself was: “Do the responses the applicant gives to my questions about Yi Guan Dao accord precisely with my text?”

   d. This approach was not a weighing up of matters in a legitimate exploration of knowledge but a test in which the Tribunal applied (and expected the applicant to submit to) a standard of knowledge to the exclusion of any other knowledge given. This is the fault referred to in the line of authority from Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at 552 [16], [2000] FCA 1599 to WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28]-[30] to SBCC v Minister Immigration and Multicultural Affairs [2006] FCAFC 129 at [45];

   e. This approach caused the Tribunal to fail to exercise its jurisdiction because it caused the Tribunal not to weigh, but to disregard the first respondent’s knowledge of Yi Guan Dao which she expressed at various times of her application including in her original application for a Protection Visa (see Court Book 29.3); her evidence to the delegate (see Court Book 126-128, RRT [41]-[52]), and her evidence to the Tribunal: see Court Book 133, RRT [82]-[84].”

6. The ground and its particulars were interpreted for the assistance of the applicant and the applicant was invited to make submissions in support and in support of the application generally. The applicant had nothing to say in support of the ground in the amended application or in support of her application generally. The amended application was prepared by the panel advisor.

7. The amended application appears to complain that the RRT’s decision is affected by jurisdictional error because it asked itself the wrong question concerning the applicant’s claim to be a Yi Guan Dao adherent. The particulars in support suggest that the RRT arbitrarily imposed and applied a standard of certain knowledge of the Yi Guan Dao religion which it required the applicant to meet. Particular (c) asserts that the wrong question the RRT asked itself was, “Do the responses the applicant gives to my questions about Yi Guan Dao accord precisely with my text.”

1. A fair reading of the RRT’s decision record does not support the contentions in the amended application.

2. The RRT’s decision record makes clear that the RRT gave careful and thorough consideration to the applicant’s claims. The RRT commenced its decision with the relevant law to be applied in considering whether the applicant had a well founded fear of persecution for a Convention related reason. The RRT then summarised the applicant’s migration history, her written claims in support of her protection visa application and her evidence given to the Delegate at interview.

3. In particular, the RRT referred to open ended questions asked by the Delegate about the applicant’s religion and her past and current activities. The RRT referred to the applicant’s answers. The RRT noted that there was no further evidence provided in relation to the applicant’s attendance at a Yi Guan Dao temple in Australia beyond the email sent to the Delegate with the address of the temple in Belmore that he applicant claimed to attend. 

4. The RRT then explored with the applicant in great detail her claims and put to her concerns it had arising from her evidence. In particular, the RRT put to the applicant inconsistencies that it found to exist. In particular, the RRT said to the applicant that the decision under review indicated that her answers about the Yi Guan Dao religion were quite superficial in their nature and in some cases contrary to independent evidence about the applicant’s religion cited by the Delegate. The RRT told the applicant that it could conclude from the quality of her answers about her religion and the absence of any external evidence linking her to that religion, that she was not a genuine adherent of that religion. The applicant said there was nothing she wished to say in response.

5. The RRT distilled its understanding of the key elements of the applicant’s claims which the applicant accepted as a fair summary.

6. The RRT said there were a number of basic rituals common to Yi Guan Dai gatherings and asked the applicant how many rituals there were. The applicant said that one should bow. The RRT told the applicant that it was looking for the number of basic rituals and sought to elicit from the applicant more information about her understanding of the rituals. The rituals were referred to by the RRT in independent information.

1. Ultimately, the RRT found the applicant’s evidence about the alleged incident in the Yi Guan Dao temple in China in September 2005 when the applicant’s parents were arrested and detained, to be inconsistent. The RRT found that the conflict in her evidence severely undermined the credibility of her claim that such an incident took place and consequently of her claim to have been a follower of the Yi Guan Dao religion in China. Ultimately, the RRT comprehensively reject the applicant’s claims of past harm to her family in China and of a fine paid for their release.

2. The RRT found the applicant’s knowledge of her religion to be superficial and referred to similar findings by the Delegate. The RRT found that it would have expected the applicant to have a detailed knowledge of the Yi Guan Dao religion, particularly about the rituals, having regard to the applicant’s claims to have practised Yi Guan Dao in China since she was a child and also in Australia. The RRT did not accept that the applicant has attended a Yi Guan Dao temple in Australia. Further, the RRT was not satisfied by the applicant’s explanation for her five year delay in seeking protection in Australia and found that her failure to seek protection prior to being taken into detention indicated that she did not come to Australia in fear of persecution.

3. Whilst it is well established that it may be a jurisdictional error to undertake the role of arbiter of doctrine in relation to an applicant’s claimed religion, the RRT in the case before this Court did not fall into any such error.

4. In Minister for Immigration and Citizenship v SZLSP [2010] FCAC 108 (“SZLSP”), Kenny J stated at [37]-[38], that:

   37 These authorities indicate that the question whether applying an "arbitrary standard" of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that "every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion" may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.

   38 Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.

5. SZLSP related to a case where the only reason stated by the Tribunal for disbelieving a claim was because the Refugee Review Tribunal found that the applicant’s answers to its questions about the applicant’s claimed religion were not correct. The Refugee Review Tribunal’s reasons did not refer to any particular questions and answers, did not disclose the source of the Refugee Review Tribunal’s understanding of doctrine and did not reveal why the answers given by the applicant were deficient.

1. Such was not this case. The RRT did not reject the applicant’s claims only because the applicant was unable to give the names and number of five rituals said to be common to Yi Guan Dao gatherings. The RRT’s reasons for rejecting the applicant’s claims and affirming the decision under review related to identified inconsistencies in the applicant’s evidence, the lack of corroborative evidence, the five year delay in seeking protection as well as the applicant’s superficial knowledge of Yi Guan Dao.

2. In the circumstances, I accept the first respondent’s written submission that the RRT’s reliance on other factors besides its evaluation of the applicant’s religious knowledge is a strong indicator that this RRT conducted a legitimate exploration of the applicant’s knowledge of her claimed religion and not simply made a determination by reference to a preconceived minimum standard of knowledge.

3. Accordingly the ground of the amended application is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT 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 RRT put to the applicant matters of concern it had about her evidence and noted the applicant’s responses. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it. The RRT also identified independent country information to which it had regard. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  20 June 2013