SZMSG v Minister for Immigration & Anor [2009] FMCA 107 (11 February 2009)

Last Updated: 18 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMSG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 107

MIGRATION – Review of decision of RRT – whether Tribunal biased – where applicant essentially seeking merits review.

Migration Act 1958 (Cth), s.424A.

WAKS v Minister [2006] FCAFC 32 Abebe v The Commonwealth [1986] HCA 33; (1999) 162 CLR 1 Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Zhang v Minister for Immigration [2005] FCAFC 30 Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601

Applicant:

SZMSG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2307 of 2008

Judgment of:

Raphael FM

Hearing date:

11 February 2009

Date of Last Submission:

11 February 2009

Delivered at:

Sydney

Delivered on:

11 February 2009

REPRESENTATION

For the Applicant:

In Person

Counsel for the First Respondents:

Mr Reilly

Solicitors for the First Respondents:

Sparke Helmore

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent's costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2307 of 2008

SZMSG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 1 January 2008 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 15 February 2008.
   A delegate of the Minister held an interview with the applicant and on 7 March 2008 decided to refuse to grant the protection visa. On 4 April 2008 the applicant applied for review of that decision from the Refugee Review Tribunal. The Refugee Review Tribunal invited the applicant to a hearing, which he attended. It also listened to the tape-recording of the interview with the delegate. On 20 June 2008 it wrote a letter to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”) to which the applicant responded on 4 July 2008. On 28 July 2008 the Tribunal determined to affirm the decision of the delegate and that decision was handed down on 7 August 2008.
2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were set out by him in a statutory declaration attached to his protection visa application [CB 26-29]. The whole of the document is reproduced by the Tribunal in its statement of decision and reasons at [CB 88-90]. Put shortly, the applicant claimed that he had run into trouble with the Chinese authorities after he left the army following a period of service of three years between December 1997 and November 2000. He told that he had been promised a job in the local government when he completed his military service but this promise was not honoured. It was not only not honoured for him, it was not honoured for a colleague of his who committed suicide in 2006 and the applicant became involved in a demonstration against the government arising out of remarks made at his colleague's funeral. The applicant claimed that he was arrested and detained in February 2006 following the funeral.
3. Whilst in detention he was subject to some police brutality. Eventually he signed a confession and paid a fine of 7,000.00 RMB yuan but it does not appear that he believed that there would be any sequelae to this protest. After he was released, the applicant claimed that he returned to Shanghai and began working as a construction labourer and fell in with a colleague who was a member of an unofficial church. The applicant claimed that he studied with this friend, attended bible classes and eventually was put in charge of a bible group himself. During this time he had encouraged people to attend the bible group, including some former members of the military. He told how the PSB began to become interested in the group till, in November 2007, persons connected with it began to be arrested. He helped other people to try and flee to Taiwan or find safety elsewhere. He said that all five members of his bible study group who were in the army had been arrested by the army police and a day later he left the country for Australia.
4. The Tribunal informed the applicant that it had listened to the tape-recording of the interview with the Department and began to question him about his association with the members of the underground church. The applicant told the Tribunal that he had been baptised in the underground church on a Sunday but that his wife had not attended the baptism, which the Tribunal considered to be unusual. The Tribunal asked the applicant some questions about his knowledge of the Bible which elicited responses that the Tribunal did not consider indicated a detailed knowledge of the Christian religion. The Tribunal questioned the applicant about the amount of money that he earned as a labourer and how much he had saved. It told the applicant that it had seen a copy of his application for a visitor's visa and it had found a number of matters of concern to it therein, in particular that document alleged that the applicant owned a property, which he denied that he owned. The document suggested that he had 50,000.00 RMB yuan in his bank account, which the applicant agreed to, but apparently it also said that he had stocks and shares to the value of 164,661.00 RMB yuan. The applicant agreed that he owned those stocks as well and that he had made money on the stock exchange. The Tribunal expressed its concern about the truth of these statements or, more accurately, about the ability of a person who claimed to be an employee on a building site to have saved this amount of money. Another concern of the Tribunal's in relation to the application for a visitor's visa was that the applicant claimed in that document that he was a manager of a beauty product company when he had told the Tribunal that he was in fact a builders labourer. The applicant provided a rather complex explanation to do with his wife and his wife's sister and their involvement in such a company.
5. The Tribunal's s.424A letter which is set out in detail at [CB 97] deals with these matters and in particular about the discrepancy between the applicant's claim to have been a builders labourer and the information contained in the application for a visitor's visa. The applicant responded and his response is set out at [CB 97-98]. Essentially the response is that he was in fact working in the building industry but that he had managed to save quite a bit of money, not only himself but his wife as well, and that was how he was able to buy shares which had increased in value quite considerably. He explained that the application for a visitor's visa had been organised by a friend of his wife who ran a travel agency and she had explained what was necessary in order to obtain such a visa.
6. In its Findings and Reasons which commence at [CB 99] the Tribunal noted that during the applicant's evidence he stated that he did not fear persecution in relation to the incident after his friend's funeral and accepted that confirmation and found that he does not have a real chance of harm for this reason if he should return to China now or in the reasonably foreseeable future. The Tribunal then went on to deal with the other claim made by the applicant concerning religion. At [CB 100] the Tribunal said:
   • “In dealing with this application the Tribunal has formed the overall view that the applicant lacks credibility and his Convention claims have not been accepted.”
7. The Tribunal then set out in seven dot points its reasons for non-acceptance of the applicant's claims. It found that it was unable to accept that he was a builders labourer as he suggested and it believed that the information provided in the application for a tourist visa was more reliable evidence of the applicant's employment and financial background in China. The Tribunal felt that a person with the applicant's education and background would be more likely to be employed in a position of a manager than as a building labourer. The Tribunal also expressed concern that the applicant's wife had not attended his baptism and that he did not have any documentation to support the fact that he had been baptised. It indicated that his inability to give detailed information regarding the prayers and psalms utilised in the prayer meetings before the delegate was not consistent with his claim to have studied the Bible and been a bible leader. It noticed inconsistencies between his evidence concerning the bible groups and his part in them and in particular in regard to the involvement of the members of the military. Finally, it noted that he had left China on a passport in his own name and that indicated, from independent country information cited, that he was not of adverse interest to the Chinese authorities:
   • “Overall, the Tribunal is not satisfied that the applicant was a labourer in China and that through his work he met Mr W who introduced him to Christianity. The Tribunal does not accept that the applicant was baptised or that he became involved in underground church activities in China. The Tribunal does not accept that the applicant's wife was baptised. The Tribunal is not satisfied that the applicant's fellow practitioners were arrested as claimed. The Tribunal is not satisfied that the applicant assisted others to leave China, that the police went to the applicant's home in China inquiring about his whereabouts or that they questioned his wife and other family members. In respect of the applicant's involvement with the church in Australia, the Tribunal has considered the witness evidence regarding such attendance and accepts that he has been attending church services. There is no evidence before the Tribunal and the applicant has not claimed that the authorities in China are aware of his church attendance in Australia. On the applicant's own evidence, his parents attend an official church in China. Should the applicant choose to continue his interest in Christianity, the Tribunal finds that, similar to his parents, he will attend an official church if he returns to China.” [CB 101-102]
8. The applicant, who speaks no English, was assisted by a “friend” to file a detailed application in this Court. There are five grounds of application. The first ground recites that the Tribunal preferred the evidence in the tourist application to the applicant's evidence that he was a builders labourer and suggests the finding was based on nothing apart from the Tribunal's unwarranted assumption that it was not satisfied that the applicant worked as a labourer. It should be clear from my recital of the history of the matter and the Tribunal's decision that this is not the case. The Tribunal questioned the applicant about the tourist visa application in some detail and wrote a letter to the applicant under s.424A concerning it. The Tribunal reached reasoned conclusions, not an assumption. As Mr Reilly points out, whether that conclusion was right or wrong is not a matter in issue as incorrect conclusions by the Tribunal do not constitute jurisdictional errors.
9. The second matter was that the Tribunal had made a finding that it was not satisfied that the applicant became a Christian as claimed and that he and his wife were baptised in 2006. The applicant takes issue with the fact that the Tribunal based this conclusion upon the fact that he had not provided any documentary evidence relating to the baptism. Tribunal decisions must be read as a whole. If, as here, the Tribunal expresses a view that it does not accept that an applicant is giving credible evidence, then this must influence all the areas in which the Tribunal has to decide what is true and what is not. It would not only have been the lack of documentary evidence that led the Tribunal to come to this conclusion but a general view of the applicant's credibility. The Tribunal's duty to deal with this matter is one which is its own “par excellence” and whilst the applicant may be disappointed at the views expressed by the Tribunal, it does not constitute anything more than a factual finding which is not open to a charge of jurisdictional error.
10. The third matter raised by the applicant was a complaint that the Tribunal had found that his inability to provide more detailed information regarding prayers and psalms was not consistent with his claim to have studied the Bible and attended church meetings three times a week for many months. The applicant claims in regard to that finding that the Tribunal had failed to provide any evidence such as a recording, CD or transcript in relation to his interview with the Department to support them. It is interesting that the applicant does not argue that he did not say those things to the delegate. If indeed he did not and there was no evidence upon which the Tribunal could come to this conclusion, then a jurisdictional error may well have been committed. But this Court does not know that. The applicant did not ask the Tribunal for a copy of the tape so that he could check it out and no copy of the tape has been provided to the Court. The concern that the Tribunal had about the applicant's knowledge of Christianity was raised with him and if he had additional information to give he could have given it to the Tribunal. I am not satisfied that the Tribunal fell into jurisdictional error as suggested by the applicant in this manner.
11. The fourth complaint made by the applicant is that the Tribunal made a finding that the Chinese authorities, if they had suspected his involvement in the underground church, would have investigated himself and other people under suspicion. The applicant argues that in coming to that conclusion it did not respond to his claim that he and his group were able to avoid being located and that the soldiers in his group had kept their Bibles in their lockers at the base. It is not necessary for the Tribunal to engage with each and every argument with the applicant (Abebe v The Commonwealth [1986] HCA 33; (1999) 162 CLR 1 at [295] per Callinan J; Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [235] per Callinan J; Zhang v Minister for Immigration [2005] FCAFC 30 at [19-20] per Moore, Mansfield & Dowsett JJ) and it seems to me that the conclusion reached by the Tribunal about what the Chinese authorities may or may not have done is something which the Tribunal is entitled to find based upon its general knowledge of the situation in the PRC obtained from independent country information generally available and its experience: Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601.
12. Fifthly, the applicant argues that the Tribunal got his evidence wrong when it suggested that his ability to depart China unhindered on a passport in his own name indicated he was not of adverse interest to the authorities. The applicant says that it was not his evidence that he was wanted by the police before his departure from China. Instead it was his evidence that he had been wanted by the police not long after he departed and that was why he was able to leave China on a passport in his own name. However, he does say that the other members of the church were all arrested on the day before he left the country as the Tribunal has noted. I do not have a copy of the transcript, nor has it been put to me to play in the Court the tape of the conversation between the Tribunal and the applicant so I have no evidence that the applicant did not say, as the Tribunal suggests, that he was wanted by the police for his involvement. In those circumstances I cannot find that the Tribunal has made a finding without evidence and thus fallen into jurisdictional error.
13. The final matter raised by the applicant relates to the finding that should he return to China and evince a continuing interest in Christianity, he would go to an official church. He says “how could the Tribunal make that finding because my parents go to that church?”
    He believes that this is evidence of a complaint that he made to me orally that the Tribunal was biased against him. The first point to make is that the Tribunal concluded that the applicant had no interest in Christianity at all because the whole story was not accepted and the only evidence about Christianity which it accepted was that his parents worshipped at an official church. It is therefore not illogical for the Tribunal to have come to the conclusion that it did concerning what the applicant might have done if he returned and still evinced an interest in Christianity. The second point is that a finding which the applicant does not like is not evidence of bias or bad faith on the part of the Tribunal. As the Full Bench Nicholson, Lander & Siopis JJ said in WAKS v Minister [2006] FCAFC 32 at [30]:
    • “There is a suggestion in one paragraph of the appellant's written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT have been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. There is, however, nothing before us or in the decision of the RRT to attract the application of those criteria.”

I am satisfied that a fair-minded lay observer would not reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided based upon the evidence provided by the applicant and the very detailed and closely argued decision.

14. For these reasons I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 17 February 2009