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SZMWK v Minister for Immigration & Anor [2009] FMCA 68 (6 February 2009)
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SZMWK v Minister for Immigration & Anor [2009] FMCA 68 (6 February 2009)
Last Updated: 11 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZMWK v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of Refugee Review
Tribunal decision – refusal of a protection visa – interlocutory
dismissal
of show cause application – no arguable case. |
|
First Respondent:
|
& CITIZENSHIP
|
REPRESENTATION
The Applicant appeared in person
Solicitors for the Respondents: |
Ms N Johnson
Sparke Helmore
|
INTERLOCUTORY ORDERS
(1) The application is dismissed, pursuant to rule
44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements
of and incidental to the application in the sum
of $2,500 in accordance with
rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal
Magistrates Court Rules 2001
(Cth).
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG2735 of 2008
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
- This
is an application to review a decision of the Refugee Review Tribunal
(“the Tribunal”). The decision was handed
down on
30 September
2008. The Tribunal affirmed a decision of the delegate of the Minister not to
grant the applicant a protection visa.
The applicant is from China and had made
claims of religious persecution. The background to the applicant's claims and
the Tribunal
decision on them are conveniently summarised in the Minister's
written submissions, filed on 23 January 2009. I adopt as background
for the
purposes of this judgment paragraphs 2 through to 9 of those
submissions:
- The
applicant, a citizen of the People’s Republic of China, arrived in
Australia on a passport issued in an assumed name.
He claimed to fear harm from
Chinese authorities because he is a Christian who attended an underground
Church. The applicant claimed
that on Christmas day 2007 plain clothes police
broke in during a service at his mother’s house and arrested and detained
several
fellow parishioners, including his family members however, he managed to
avoid arrest. The applicant additionally claimed to fear
harm from Chinese
authorities if returned to China because he had travelled on a false passport
and if returned, would be identified
as a failed asylum seeker.
- On 22 April
2008 the applicant lodged an application for a protection visa. Court Book (CB)
1-26. He provided statements dated
27 April 2008 (CB 27) and 9 May 2008 (CB
30-31) in support of his claims. The applicant was interviewed by a
delegate of the Minister on 19 May 2008 and, in a decision dated 27 June
2008,
the delegate refused the application for a protection visa: CB 34-46. The
delegate concluded that the applicant was not a
committed Christian and was not
satisfied that he had been persecuted as a result of his religion. The Tribunal
therefore found
that the applicant’s chances of persecution on account of
his religion to be at best remote and not well-founded: CB 45.
- On 15 July
2008 the applicant lodged an application with the Refugee Review Tribunal (CB
47-50) seeking review of the decision of
the delegate. On 30 July 2008 the
applicant was validly invited to attend a hearing before the Tribunal (CB
53-54) and in a letter dated 1 August 2008, was advised that the hearing
had been re-scheduled: CB 55-56. The applicant completed a response
to the
hearing invitation (CB 57). On 28 August 2008, he attended a hearing before the
Tribunal (CB 73-74) where he gave oral evidence
and provided the Tribunal with a
copy of the passport on which he entered Australia, issued in an assumed name:
CB 58-72.
- The
Tribunal found the applicant’s knowledge of Christianity was ‘less
than rudimentary’ and was not satisfied
that he was a member of an
underground church or of any sect of Christianity. For example, the applicant
did not know who Jesus Christ
was, what Christmas signified, the difference
between the Old and New testaments or what baptism was. The Tribunal therefore
found
that the applicant was not a Christian as he had claimed: CB 89.5. The
Tribunal was also not satisfied that the applicant’s
family members were
Christians and did not accept that he or his family participated in or attended
any Christian services of any
kind in China or would be imputed to have done so:
CB 89.6. The Tribunal therefore did not accept that the applicant had been
harassed
by police, or that members of his family or friends had been arrested
or were of any interest to the Chinese authorities: CB 89.8.
- Nor was the
Tribunal satisfied that the applicant had attended church services in Australia.
It was therefore not required to consider
whether the applicant had engaged in
conduct for the purpose of strengthening his claim for refugee
status.[1] The
Tribunal found that even if the applicant had attended Church in Australia, it
was not satisfied that he was a Christian. Accordingly,
it could not be
satisfied that this was engaged in otherwise than for the purpose of
strengthening his claim for refugee status and
therefore it was required to
disregard that conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth)
(“the Migration Act”): CB 90.1.
- As the
Tribunal found that the applicant was not a Christian, it concluded that he
would not attend church services in China and
therefore would not fear
persecution for doing so. Although it accepted that the applicant had travelled
on a false passport, the
Tribunal observed that the applicant had departed China
on his own passport before swapping it in transit. The Tribunal was also
satisfied that any penalty that may be imposed as a result of the applicant
travelling using an illegal passport would be in accordance
with the law of
general application within China and therefore not persecution for a Convention
reason.[2]
- Additionally,
although the Tribunal accepted that the applicant’s employment
opportunities may be negatively affected if it
became known by Chinese
authorities that he was a failed asylum seeker, the Tribunal was not satisfied
that this would amount to
persecution within the meaning of the Convention:
CB90.5. Such findings of fact are uniquely within the jurisdiction of the
Tribunal[3] and a
function of the Tribunal par
excellence.[4]
- Accordingly,
the Tribunal was not satisfied that the applicant had a well founded fear of
persecution for a Convention reason: CB
90.8.
- These
proceedings commenced with a show cause application, filed on 23 October 2008.
The applicant was given the opportunity to file
and serve an amended application
and to provide evidence in support of it, but no amended application has been
filed. I received
a short affidavit, filed in support of the original
application. The facts in that affidavit are uncontroversial. The application
contains seven grounds:
- 1. The
Tribunal failed to act judicially and afford procedural fairness.
- 2. The
Tribunal failed to comply with s.424AA of the Act.
- 3. The
Tribunal failed to comply with s.424A of the Act.
- 4. The
Tribunal did not take into account certain relevant considerations or integers
central to the applicant’s claims.
- 5. The
Tribunal failed to consider the applicant’s claims.
- 6. The
Tribunal failed to investigate the applicant’s genuine claims.
- 7. The
Tribunal failed to comply with s.91R(3) of the Act.
- Particulars
- 1. The
Tribunal did not [centralise] my claim and correctly identify my well found
fears of persecution on the grounds of religion
if forced to return to
PRC.
- 2. The
Tribunal didn’t consider ... my claims thoroughly. If I am forced to
return to PRC, I will be ... a person of interest
to the PRC authorities on the
account of my religion.
- 3. The
Tribunal didn’t consider all my claims.
- 4. The
Tribunal did not use the country information as specific however, the general
information gathered by the Tribunal considered
to weigh against my case in the
final outcome. The Tribunal ought to use [all the] information for matter of
reasoning and evaluation
of my case for protection visa.
- 5. The
Tribunal did not use the most updated country information to weigh against my
case where the country information quoted was
out of date.
- 6. The
Tribunal misunderstood and failed to apply the correct test in order to be
satisfied as to whether the Applicant had a well-founded
fear of persecution for
a Convention reason on the grounds of religion.
- I
received as evidence the court book, filed on 19 November 2008. The applicant
complained that he had not received the court book.
On the basis of what I was
told from the Minister's solicitor from the bar table, I am satisfied that the
court book was sent by
post to the applicant at his address of service on or
about 19 November 2008. Three letters were sent by the Minister's solicitors
to
the applicant at that address. The applicant conceded receipt of two of them.
There is no explanation as to why the third letter
containing the court book was
not received. I determined that the applicant was not disadvantaged by late
receipt of the court book
because, with the exception of two documents of no
consequence, he would have seen previously all of the documents contained in it.
- I
gave the applicant the opportunity to make oral submissions in support of his
application. He had not taken up the opportunity
given to him to file and serve
written submissions. He declined to say anything in support of his application.
The Minister's submissions
deal with the grounds of review in the show cause
application. I agree with those submissions and adopt them, with minor
amendments,
for the purposes of this judgment:
- In his
application filed on 23 October 2008, the applicant raised seven grounds.
Particulars provided in support of the seven grounds
of review repeat the
various grounds and otherwise seek impermissible merits review. Each ground is
addressed below.
- The first
ground asserts that the Tribunal ‘failed to act judicially and afford
procedural fairness’. In the absence
of any particulars to make this
ground meaningful it cannot succeed. The Tribunal validly invited the applicant
to attend a hearing
which he subsequently attended and gave oral evidence. Also,
during the course of the hearing the Tribunal raised with the applicant
the
concerns that it had with his evidence so that he was clearly on notice of the
determinative issues on the review. In particular,
the Tribunal put to the
applicant that it was having difficulty accepting his claims to be a Christian
or to have attended an Underground
Church, in view of the fact that he was
unable to provide meaningful detail about the Church or even Christianity: CB
87.3. As the
applicant was given the opportunity to address these concerns at
the hearing, the Tribunal has fulfilled its obligations under s.425 of the
Migration
Act.[5]
The second and third grounds respectively assert that the Tribunal failed to
comply with s.424AA and s.424A of the Migration Act. Section 424AA is not
mandatory. The section enables the Tribunal, if it so chooses, to orally give to
an applicant particulars of any information
which the Tribunal considers would
be part of the reason for affirming the decision under
review.[6]
‘Information’ for the purpose of s.424AA has the same meaning as in
s.424A.[7] There
can be no breach of s.424AA in the absence of s.424A being engaged by the
information concerned. This means that any such information must not only fall
within s.424A(1) but also not be excluded by s.424A(3). The Tribunal decision
was not based on information within the meaning of the section. The Tribunal
affirmed the decision of the
delegate essentially on the basis of the view it
took of the facts, specifically the adverse view it formed of the
applicant’s
credibility. This was not ‘information’ for the
purpose of s.424A because ‘information’ is related to the existence
of evidentiary material or documentation, not the existence of doubts,
inconsistencies or the absence of
evidence.[8]
Further, the evidence given by the applicant to the Tribunal falls within the
exception in s.424A(3)(b). For the same reasons, s.424AA was also not enlivened
and no obligation arose for the Tribunal to disclose to the applicant, either in
writing or orally, particulars
of information which would be the reason or part
of the reason for affirming the decision under review. As neither of these
sections
were enlivened, no breach can be established.
The fourth ground complained that ‘the Tribunal did not take into
account certain relevant considerations and integers central
to the
applicant’s claims’. It is clear from the Tribunal’s reasons
that it considered in detail each of the applicant’s
claims and provided
logical and cogent reasons for why it did not accept those claim. In the absence
of meaningful particulars identifying
the considerations and particulars the
Tribunal is alleged to have failed to consider, this ground cannot be made out
and must fail.
Similarly, ground five which complained that ‘the Tribunal failed to
consider the applicant’s claims’ must also
fail.
In ground six it is alleged that ‘the Tribunal failed to investigate
the applicant’s genuine claims’. However,
the Tribunal is under no
obligation to undertake investigations. It was for the applicant to place such
material as was necessary
to persuade the Tribunal of his claims before the
Tribunal. The Tribunal was under no obligation to verify or investigate the
applicant’s
claims and has no duty to consider utilising such permissive
statutory powers as it had which might enable it to
investigate.[9]
This ground must fail.
Finally, the applicant asserts that the Tribunal ‘failed to comply
with s.91R(3) of the Act’. Yet the Tribunal rejected the
applicant’s claim to have attended church in Australia: CB 90.1. There was
therefore no conduct within Australia to disregard and the Tribunal was not
required to consider the applicant’s motive for
the alleged
conduct.[10]
In relation to the applicant’s claimed fear to return to China because
he had travelled on a false passport and would be identified
as a failed asylum
seeker the Tribunal found on the applicant’s own evidence that he departed
China on a passport issued in
his own name and it was not until after he had
left China that he relied upon a false passport: CB 90.5. Without making a
finding
as to whether the Chinese authorities would be aware of the
applicant’s use of a false passport, the Tribunal’s finding
that any
sanction that might be imposed by the authorities as a result would be as a
consequence of a law of general application
and therefore not Convention-related
persecution is a complete answer.
The Tribunal additionally found on the basis of independent country
information that any penalty arising from the Chinese authorities
becoming aware
of his claim for asylum would not amount to persecution within the meaning of
the Convention. Accordingly, the Tribunal
concluded that no sur place claims
arose as a result of the applicant travelling outside of China on a false
passport or lodging
his protection visa application. Such findings are findings
of fact and were reasonably open to the Tribunal on the evidence before
it.
Findings of fact, including findings on credibility are uniquely within the
jurisdiction of the
Tribunal[11]
and there is no error of law let alone a jurisdictional error in the Tribunal
making a wrong finding of
fact.[12] As
the applicant was found not to have attended church services in Australia and it
was not claimed that he engaged in other Christian
or religious activities in
Australia, a sur place claim does not arise. Accordingly, the Tribunal was not
required to consider whether
the applicant had a well founded fear of
persecution on this basis. No breach of s.91R(3) has been identified and none is
apparent.
- Neither,
on my own reading of the material, is there any arguable case of jurisdictional
error by the Tribunal. This was a simple
matter for the Tribunal to resolve.
The applicant claimed to be a Christian, but he displayed no knowledge of
Christianity. His
claim was not believable and he was not believed. The
Tribunal decision turned on its disbelief of the applicant's claims.
- The
Tribunal only had regard to information provided to it by the applicant for the
purposes of the review, information previously
provided by the applicant to the
department and country information. There was, in my view, nothing requiring
disclosure pursuant
to s.424A of the Migration Act, although it appears from
what is set out at CB88 that the Tribunal may have purported to have gone
through a process of disclosure
pursuant to s.424AA of the Migration Act. The
Tribunal does not commit any error by exceeding its disclosure obligations.
- Further,
the Tribunal did not accept that the applicant had engaged in asserted conduct
in Australia relating to religious observences.
In the circumstances, in
s.91R(3) of the Migration Act was not enlivened. The Tribunal's reference to
that section simply covered the possibility that the Tribunal might be wrong in
rejecting
the fact of the applicant's claimed activities in Australia.
- Also,
on his own account, the applicant left China legally on his own passport, and in
the circumstances it was unnecessary for the
Tribunal to consider whether the
applicant might be punished on return to China for breaching Chinese law
concerning illegal departure.
Nevertheless, the Tribunal considered the
possibility that he might be punished if he had departed the country illegally.
In doing
so, the Tribunal was simply being cautious and no error is disclosed.
- I
find that no arguable case of jurisdictional error has been demonstrated by the
applicant or appears from the available material.
Accordingly, I dismiss the
application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court
Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
- Costs
should follow the event in this case. The Minister seeks scale costs of $2,500.
The applicant did not wish to be heard on costs.
I will order that the
applicant pay the first respondent's costs and disbursements of and incidental
to the application in the sum
of $2,500 in accordance with rule 44.15(1), and
item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court
Rules.
I certify that the preceding ten (10) paragraphs are a
true copy of the reasons for judgment of Driver FM
Associate:
Date: 9 February 2009
[1] SZJGV v
Minister for Immigration & Citizenship (2008) 247 ALR 451; 102 ALD 226;
[2008] FCAFC 105 at
[22]
[2] Aala v
Minister for Immigration [2002] FCAFC
204
[3] NADR v
Minister for Immigration [2003] FCAFC 167 at
[9]
[4] Re
Minister for Immigration: ex parte Durairajasingham (2000) 168 ALR 407
per Mc Hugh J at 423
[67]
[5] SZBEL v
Minister for Immigration [2006] HCA 63 at
[42]- [44]
[6]
SZLQD v Minister for Immigration & Citizenship [2008] FCA 739 per
Marshall J at
[12]
[7] SZLTC v
Minister for Immigration & Citizenship [2008] FMCA 384 per Driver FM at
[18]
[8] SZBYR v
Minister for Immigration & Citizenship (2007) 235 ALR 609; (2007) 81 ALJR 1190; (2007) 96 ALD 1; [2007] HCA 26; at [18] citing VAF v
Minister for Immigration & Multicultural & Indigenous Affairs (2004)
ALR 471 at 477
[9] VCAK of 2002 v Minister for Immigration
[2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration [2002] FCAFC 277
at [21], [24]-[25]; W389/01A v Minister for Immigration [2002] FCAFC 432; (2002) 125 FCR 407 at
[74]- [78]
[10] SZJGV v
Minister for Immigration & Citizenship [2008] FCAFC 105 at
[22]
[11]
Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at
272
[12] Abebe v
Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [137]
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