SZMWW v Minister for Immigration & Anor [2009] FMCA 59 (27 January 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWW v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 59

MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – citizen of China claiming fear of persecution for being a member of a particular religious group – credibility – no jurisdictional error – privative clause decision.

Migration Act 1958 (Cth), ss.91R, 422B, 424A, 425, 474(2)

Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, referred to Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1, referred to

Applicant:

SZMWW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2817 of 2008

Judgment of:

Scarlett FM

Hearing date:

27 January 2009

Date of Last Submission:

27 January 2009

Delivered at:

Sydney

Delivered on:

27 January 2009

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondents:

Ms Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $4950.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2817 of 2008

SZMWW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant is a citizen of China. She asks the Court to set aside a decision of the Refugee Review Tribunal that was made on 2 October 2008, affirming the decision of a delegate of the Minister not to grant her a Protection (Class XA) visa. The applicant asks the Court to set aside the Tribunal decision and to order that the Tribunal should, again, review her case, but according to law. It has been explained to the applicant that, in order for the Court to be satisfied it should make the orders that she seeks, the Court should be satisfied that the decision is affected by jurisdictional error.
2. In her application the applicant has set out two grounds. Those grounds are:
   • (1) Jurisdictional error has been made. RRT did not use favourable cases to my application.
   • (2) Procedural fairness has been denied. RRT failed to address my potential sur place claim that I would be exposed to a real risk of persecution in the future, as I am a pious Christian.
3. Those are the grounds upon which the applicant relies.

Background

4. The background to this matter is that the applicant arrived in Australia on 9 March 2008. On 20 March she applied for a Protection (Class XA) visa. She had the assistance of a migration agent to prepare her application. Her application was accompanied by a three-page typed statement, in English. In her application she set out that she had worked in a copying shop in China and in April 2005 a man came into the shop, asking her to copy some materials. He had produced some material relating to the Christian religion and started talking to the applicant about Christianity. In her application she said that eventually her relationship with this man built up, so that she married him, but she also converted to Christianity, becoming a member of an underground Christian church. She claimed that her husband - or, at that stage, her future husband - was taken away by the police and detained for 3 months in a detention centre, as a result of his Christian activity. She arranged to pay an amount of money to secure the release of her fiancé and they were married in February 2006. She claimed that the police and officers from the local residential committee subjected them to a number of visits, and threats, and other harassment, relating to their Christian belief. Eventually the husband left for Australia, in August 2006, but the applicant still came under notice from the police.
5. The applicant has a child, a son, who was born on 12 May 2007. The applicant set out in her statement that, again in 2007, police went to the home of her mother-in-law and found Christian materials there. The applicant said that she escaped; with the aid of a friend, she sold her shop and left China for Australia. She claims to fear persecution, if she were to return to China, on the ground of her religious belief.
6. A delegate of the Minister for Immigration & Citizenship refused the application for a visa on 29 April 2008. In the delegate's decision the delegate expressed considerable doubts about the credibility of the applicant's account. In particular the delegate referred to the applicant's claim to have been able to obtain a passport and to leave China unhindered, if she was in fact a person of adverse interest to the authorities. The delegate said:
   • I do not find it credible that the authorities would issue her with a passport if she had the significant profile, as suggested in her claims[1].
7. Again the delegate referred to the unlikelihood that a person of adverse interest to the authorities would be allowed to exit China, given the stringency of the checking which occurs at points of departure. The delegate referred to the lack of documentary evidence provided by the applicant in support of her claims and rejected the applicant's claims on the lack of corroborative evidence that had been provided.

Application to the Refugee Review Tribunal

8. After her application for a visa was refused, the applicant then applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received a copy of the application for review on 26 May 2008. The application disclosed that the applicant was represented by a migration agent. The Tribunal wrote to the applicant's agent on 26 June, inviting her to attend a hearing of the Tribunal to take place on 31 July 2008. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Chinese language. The hearing was not completed on 31 July and resumed on 8 August 2008. Again the applicant attended, and gave evidence and made submissions with the assistance of a Mandarin interpreter.
9. After the hearing on 13 August 2008, the Tribunal wrote to the applicant's migration agent, in a letter that was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter invited the applicant to comment on, or respond to, certain information that the Tribunal considered would - subject to any comments or response the applicant might make - be the reason, or a part of the reason, for affirming the decision under review. The Tribunal set out that information, which related to an application made for a tourist visa application lodged with the Australian Consulate in Shanghai on 20 December 2007. The Tribunal set out that information, and also set out a summary of parts of the applicant's statement accompanying her protection visa application, and pointed out that the evidence was inconsistent with what had been in the application for a visa. The letter set out why the information was relevant. The Tribunal also set out in the letter information that the applicant withdrew her application for a tourist visa, and reapplied on 29 February 2008, when she was granted a visa. The applicant was asked to provide written comments, or a written response, by 5 September 2008.
10. The applicant, with the aid of her agent, provided written comments, which, whilst dated 2 September 2008, appear to have been faxed and then forwarded by post on 12 September 2008. The applicant's reply is one and a half pages, setting out her answers to the matters contained in the Tribunal's letter. The applicant also provided some other documents, in Chinese, with English translations.
11. The Tribunal signed its decision on 11 September 2008 and handed the decision down on 2 October, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. A copy of the Tribunal decision record can be found in the Court Book, at pages 105 through to 122. In the decision record the Tribunal sets out, under the heading "Claims and Evidence", a detailed summary of the applicant's written application and documents submitted. I note that an error appears in paragraph 20 on page 108 of the Court book, where the Tribunal refers to the applicant appearing before the Tribunal on 31 August 2008. That is obviously a typographical error, as the applicant appeared on 31 July and 8 August 2008. In my view, that is a typographical error and nothing further.
12. The Tribunal also set out, at pages 110 to 113, a detailed summary of the applicant's evidence on 31 July, and, at pages 113 through to 117, a detailed summary of the applicant's evidence on 8 August. The Tribunal also referred to its s.424A letter and the applicant's reply. The Tribunal considered independent country information, provided by the Department of Foreign Affairs & Trade, about the fact that the authorities in China check all passengers exiting China against an alert list.

The Tribunal’s Findings and Reasons

13. In the Tribunal's findings and reasons, which are set out at pages 119 to 122 of the Court book, the Tribunal accepted that the applicant was a citizen of the People's Republic of China. The Tribunal noted the applicant's claim that she suffered persecution in China because of her Christian faith. However, the Tribunal did not find the applicant to be credible on many key aspects of her claims. The Tribunal proceeded to set out a number of examples of inconsistencies, contradictions and implausibility, as the Tribunal said, that led the Tribunal to conclude that the applicant was not a reliable witness in relation to certain aspects of her claims. Those inconsistencies, contradictions and other matters are set out at pages 120 through to 121.
14. The Tribunal went on to make this finding:
    • The above matters collectively lead the Tribunal to find that the applicant is not a credible witness and it rejects her claims that she was a member of an underground Christian church in China, or that she photocopied material for underground churches. The Tribunal therefore rejects her claims that she was threatened with detention in November 2006 and fined for copying Christian materials. The Tribunal does not accept that, on 24 December 2007, her ex-mother-in-law and fellow members were discovered by the police and taken to the police station, and that photocopies from the applicant's shop were found at her ex-mother-in-law's home. The Tribunal is not satisfied that the Chinese authorities are adversely interested in the applicant because of religion or any other Convention reason[2].
15. The Tribunal then went on to consider the fact that the applicant had been attending Church in Australia on a regular basis. The Tribunal did not disregard the conduct as being conducted engaged in by the applicant for the dominant purpose of strengthening her refugee claims, but was not satisfied that she had attended because of a Christian faith. The Tribunal said:
    • The Tribunal is of the view that the applicant joined the church because she enjoys the gathering and finds it comforting. The Tribunal is not satisfied that the applicant will become involved in Christian activities in the reasonably foreseeable future, should she return to China[3].
16. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for a Convention reason, if she were to return to China, and affirmed the decision not to grant the applicant a protection (Class XA) visa.

Application for Judicial Review

17. The applicant commenced proceedings in this Court, by means of an application and an affidavit in support filed on 30 October 2008. The affidavit annexed a copy of the Tribunal decision and the text of the affidavit says:
    • (1) I arrived in Australia in March 2008. I was born in China. I refuse to go back to China, as Chinese Government forbids me to spread Gospel.
    • (2) I am Christian. Chinese Government persecutes Christians. I will be put in gaol if I go back to China.
18. The applicant has not filed a written outline of submissions but has attended Court today and, with the assistance of an interpreter in the Mandarin language, has made oral submissions to the Court. She told the Court that she was not satisfied with the Tribunal's decision to reject her application. She then went on to reiterate her factual claims for a visa on the basis of being a member of an underground church, and claimed to have come to Australia to seek protection from the Australian Government.
19. I have had the benefit of reading a concise and accurate written outline of submissions prepared by Ms Mitchelmore of counsel, which I must say, with respect, has been extremely helpful. Counsel for the respondent makes the point that the Tribunal rejected the applicant's claims because the Tribunal found the applicant was not a credible witness. Ms Mitchelmore refers to the two grounds of review raised in the application: first, that the Tribunal made a jurisdictional error in failing to use cases favourable to the applicant; and, second, that the Tribunal denied the applicant procedural fairness, in failing to address her potential sur place claim that she would be exposed to a real risk of persecution in the future, as she is a pious Christian. Counsel submitted that the Tribunal set out in the decision record the principles to be applied in determining whether an applicant for a protection visa is a refugee within the meaning of the Refugees Convention, and did not make any error in doing so. She submitted that the applicant's complaint could not be with the principles, so much as the outcome of the Tribunal's application of them to the evidence that the applicant gave in support of her claims. The submission is that, because the Tribunal reached the conclusion that the applicant was not a credible witness on the basis of her own evidence, this is a finding of fact which is not open to review by the Court, referring to the well-known of McHugh J in the High Court of Australia in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham[4]. Counsel for the respondent Minister also submits that there is no basis for the claim that the Tribunal failed to consider the applicant's potential sur place claim, because the applicant did not make any such claim and the Tribunal is only required to assess the claims before it, as opposed to making out an applicant's case for them. I am referred to the decision of Abebe v The Commonwealth[5] at [187], per Gummow and Hayne JJ.

Conclusions

20. I have considered the material before me. The applicant's oral submissions were essentially a restatement of her factual claims to be a refugee. Those claims, of course, have been rejected by initially by the delegate but more importantly, in these circumstances, by the Refugee Review Tribunal. They have been rejected on the grounds of credibility. In effect, the reciting of the applicant's factual claims is an attempt at requiring the Court to engage in a review of the applicant's factual claims on their merits. This is not open in judicial review of the decision of an administrative decision–maker. Provided that there is evidence upon which the Tribunal could make a decision on the facts, there is no scope for interference by a Court conducting judicial review. It matters not that the Court could come to a different view on the facts given by the applicant. The Court does not review cases on their factual merits. The Court must look at the legal and procedural errors, if any, which come under the heading of "Jurisdictional Error".
21. In my view, there is no error by the Tribunal in the way that it assessed the applicant's credibility, and the applicant's credibility was central to the applicant's claim. The Tribunal considered the applicant's evidence given at the hearings on 31 July and 8 August, and raised certain issues with the applicant for her comment in the s.424A letter of 13 August. The Tribunal clearly considered the applicant's written responses to that letter. In the end it came down to a rejection of the applicant's claim, on the basis of credibility. The High Court - in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham[6], has made it quite clear that, where a Tribunal makes a finding that it does not accept the evidence of a particular witness, that is sufficient for the purpose of proceedings. McHugh J went on to say, at para.67, that a finding as to whether an applicant should be believed in his or her claim is a finding on credibility, which is the function of the primary decision-maker par excellence:
    • If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
22. In my view, the applicant's first ground of review must fail.
23. The second ground of review claims that the Tribunal failed to considerable a potential sur place claim. This is a ground that cannot succeed. The applicant has not made a sur place claim; she has not provided any evidence, other than her evidence that she had attended church in Australia, that would lead to any finding that, if she were to return to China, the circumstances in Australia would then lead to her being persecuted. The Tribunal made it clear in its decision as to why the applicant, in the Tribunal's view, attended church, but also made it clear that it did not believe that the applicant would do so on her return to China. This is a purely factual decision. The Tribunal has specifically not disregarded the evidence under subsection 91R(3), because the Tribunal has considered that the applicant attended church for a reason other than strengthening her refugee claims. The Tribunal said:
    • The Tribunal is of the view that the applicant joined the church because she enjoys the gathering and finds it comforting[7].
24. There is no identification of a sur place claim, either real or potential, and it is not the task of the Tribunal to look for a case that the applicant has not made out. The applicant's second ground of review must fail.
25. I am mindful of the fact that the applicant is not legally represented in these proceedings, but has received legal advice from a lawyer on the RRT legal advice panel. It is appropriate for the Court to consider whether any arguable case for jurisdictional error might be made that the applicant has not mentioned. In my view, there is no breach of s.425 of the Migration Act. The Tribunal invited the applicant to attend the hearing and provided the services of an interpreter on each of the hearing dates. There is nothing to suggest that the applicant was not able to give her evidence and make her submissions to the Tribunal. The Tribunal ultimately rejected the applicant's claims on the basis of credibility and, of course, the delegate had also made adverse findings of credibility when rejecting the original application. Accordingly, it cannot be said that there was any issue that arose at the hearing that took the applicant by surprise, or that the applicant was unaware as to what the issues before the Tribunal hearing might be. There is no breach of s.425 of the Migration Act.
26. The Tribunal also wrote to the applicant under the provisions of s.424A of the Migration Act and sought her comments, or response, on certain information relating to an earlier visa application and inconsistencies between what was said in that application and what the applicant had said in applying for a protection visa. The applicant was given a proper opportunity to reply, and did so. The Tribunal considered the applicant's reply. There is no breach of s.424A of the Migration Act. There is no procedural unfairness. It is well-known that s.422B of the Act places limits on procedural-fairness claims and it is quite clear that procedural fairness is specifically set out in the appropriate sections of the Act. In my view, the Tribunal has complied with them. There is no jurisdictional error.
27. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act. Accordingly, it is not subject to orders in the nature of certiorari or mandamus and it follows that the application must be dismissed. The application is dismissed.
28. There is an application for costs on behalf of the first respondent minister. The amount sought is $4950. In my view, as the applicant has been unsuccessful in her claim, it is an appropriate matter for an order for costs to be made in favour of the first respondent, who has been successful. The amount sought is $4950. That is a figure that is within the amount provided by the scale in the Federal Magistrates Court Rules. My examination of the file and the documents prepared would indicate that that is a suitable figure.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 9 February 2009

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[1] See Court Book at page 69
[2] See Court Book at page 121
[3] See Court Book at page 121
[4] (2000) 168 ALR 407; [2000] HCA 1
[5] (1999) 197 CLR 510
[6] (2000) 168 ALR 407, [2000] HCA 1
[7] See Court Book at page 121