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SZKOO v Minister for Immigration & Anor [2009] FMCA 729 (5 August 2009)

Last Updated: 6 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKOO v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s duty to act judicially defined by the Migration Act 1958 – choice of country information and weight to be given to such information is a matter for the Tribunal – bias and lack of good faith not proved – Tribunal has no general duty to make enquiries.


Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Applicant:
SZKOO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 899 of 2009

Judgment of:
Cameron FM

Hearing date:
23 July 2009

Date of Last Submission:
23 July 2009

Delivered at:
Sydney

Delivered on:
5 August 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent:
Mr Y. Shariff

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 899 of 2009

SZKOO

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant is a citizen of China where, she claims, she was a member of an unregistered Church. She alleges that in 2001 she attended a secret gathering which was raided by the police but managed to escape and flee China.
  2. The applicant claims to fear persecution in China because of her Christian religion.
  3. After her arrival in Australia on 20 August 2001, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 22 November 2001. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
  4. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. There was a previous Tribunal decision dated 3 March 2003 which was quashed, by consent, by order of this Court on 3 February 2009.
  5. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
  6. For the reasons which follow, the application will be dismissed.

Background facts

  1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 16 of the Tribunal’s decision (Court Book (“CB”) pages 136 – 148). Relevant factual allegations are summarised below.
  2. In her application for a protection visa, the applicant claimed to fear persecution in China because of her Falun Gong practice. However, in correspondence received on 9 March 2009 by the Tribunal as secondly constituted, the applicant claimed that in fact she feared persecution in China on the basis of her religion. She claimed that she had advised her migration agent of this and only learned later on that her application had been made on the basis that she was a Falun Gong practitioner. She claimed that her migration agent advised her not to attend an interview with the department and did not inform her of the hearing before the Tribunal as first constituted.
  3. In a statutory declaration dated 15 March 2009, the applicant claimed that:
    1. the reasons submitted with her first application were not her real claims and she was not aware of what had been submitted until March 2007 when she read the decision of the Tribunal. She has never been involved in Falun Gong activities and her fear of persecution relates only to her Christian beliefs;
    2. she and her husband both grew up in Christian families. They continued to attend family church gatherings after their marriage and were baptised in 1995. Since then, whenever permitted, they would tell people about the Gospel and invite others to join their worship and fellowship meetings. These were held in private homes;
    1. the police conducted a raid during a gathering in November 1997 and arrested two members, both of whom were later sentenced to three years’ imprisonment. The applicant’s husband escaped with a Brother Chen and afterwards he went to Brother Chen’s home in Guangdong. In March 1998 the applicant’s husband came to Australia with Brother Chen’s assistance;
    1. after this incident, the PSB came both to the applicant’s home and to her parents’ home requesting that the applicant’s husband attend their office to assist with their investigation. Her husband did not turn up and, after a period of time, the PSB stopped coming;
    2. she continued to hold family church meetings after her husband left China. On 15 July 2001 a meeting was held at the applicant’s home with about thirty attendees. However, at about 9pm one of the “outs” rushed in and said that the police were approaching. Eight people were subsequently arrested. The applicant herself hid in a wardrobe and did not emerge until about 1am. On her parents’ advice she travelled to Fuzhou and from there went to Hong Kong with the assistance of her aunt. She then travelled to Australia on a photo-substituted passport;
    3. while in Australia, she and her husband attended church services in Padstow. However, her husband (who had also lodged a protection visa application) was arrested and detained in 2002. He was given a bridging visa on payment of a security bond but decided to return to China in July 2002 because he missed his children and wanted to get the bond back to repay others. She later learned that her husband was detained by the border police after returning to Fujian and was sent to a police station where he was given bail awaiting further investigation. However, he absconded with the assistance of church members and was smuggled to Europe on a cargo ship;
    4. in December 2003 she was baptised again at the Padstow church;
    5. in 2006, due to transport problems, she began attending a church in Auburn and has been a member of this church since then; and
    6. she fears that if she returns to China she will lose her freedom of religious practice. She is determined not to attend the registered church because it is not a real church but a tool of the Chinese government. She is prepared to return to China one day to evangelise God’s Gospel but will feel much safer if she can do so on an Australian passport.
  4. The applicant provided further submissions on 19 March 2009 enclosing statements of support from Rev. Zhang of the Auburn church and Rev. Ku of the Padstow church, as well as statements of support from a number of other parishioners.
  5. At a hearing before the Tribunal as secondly constituted, the applicant made the following additional claims:
    1. she did not learn of the status of her application until 2007 because her migration agent advised her not to attend the departmental interview and because her English skills were not good;
    2. she was aware that her migration agent had lodged an application for review with the Tribunal and she received a letter inviting her to a hearing in late 2001, however, her migration agent advised her not to attend. The applicant later said that she did not receive any documents;
    1. she variously stated that she did not make any inquiries about the progress of her application between 2001 and 2007 because:
      1. she thought that she would have no more opportunities once her application was refused by the department;
      2. she did not dare inquire and, in any event, did not know where to inquire;
      3. her agent moved from Auburn to Flemington and did not give her any notice;
      4. her friends told her that once her application was rejected she had no chance;
      5. she was told that if an application took a year and a half it is usually refused and so she waited;
      6. people from her area were usually refused;
      7. she thought that she had already become an illegal immigrant and had no chance;
      8. she did not know English and nobody would help her and she had been waiting for another chance; and
      9. her friends were in the same situation as she and did not speak English;
    1. between 2001-2007 she supported herself in Australia by doing whatever jobs were available. She found these jobs through the Chinese newspapers and managed to find accommodation through friends;
    2. the applicant and her family did not attend the official churches in China because they are patriotic churches and the content of the Bible is controlled by the government. Further, the Ministers give different sermons;
    3. the gatherings in China were usually held on Wednesdays and Sundays at “brothers’ and sisters’ homes”. Sometimes they would gather in other places;
    4. she initially stated that she was given a warning by the police in 1992 and 1997. She then said that she was given a warning in 1997 only, but later said that she was also given a warning in 1992 but had not mentioned this in her written claims because it happened a long time ago and she did not remember it at the time;
    5. regarding the July 2001 incident, they were given a ten minute warning of the police’s arrival. The applicant hid in a cupboard while the police searched the house. She could see them but they could not see her; and
    6. she does not understand the Bible very well and forgets after reading it. She is not educated, does not have a good memory and does not memorise the Bible.

The Tribunal’s decision and reasons

  1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
    1. the Tribunal was of the view that the applicant had deliberately avoided making inquiries about her protection visa application, noting that:
      1. she was unable to offer a satisfactory explanation as to her motivations for not pursuing her application; and
      2. the Tribunal did not accept that in the six years between 2001 (when she made the application) and 2007 (when she found out about “re-applying”) the applicant had had no opportunity to make inquiries or find a person who could assist her with making such inquiries, particularly given that in this period she was able to find accommodation and employment and claimed to have been actively involved in the activities of the church.

The Tribunal found that the applicant’s lack of interest in the outcome of her application indicated that she did not have a genuine fear of persecution in China. It also caused the Tribunal to question the veracity of her claims;

  1. the Tribunal found that the applicant was not a credible witness, noting that she was evasive on a number of occasions and provided inconsistent evidence with regard to the following:
    1. she initially claimed that the police warned her on two occasions not to attend the gatherings. Later, she referred to the 1997 incident when her husband escaped, saying that she was warned at that time but not before. She then stated that she was also warned in 1992;
    2. she initially claimed that the police were aware of the gatherings and warned her to attend the official church. She then stated that the police did not find out about the gatherings because they were able to disperse before the police arrived;
    3. she claimed that no action was taken against her in 1992 and that she was only given a warning because it was a first-time offence. However, this appeared inconsistent with her claim that she was also warned in 1997. More importantly, the 1992 incident was not included in her written claims and the Tribunal did not accept that the applicant would not have been able to recall so significant an event, particularly given that she was able to recall in considerable detail other events that she described in the statement which she provided to the Tribunal only a few days before the hearing;
    4. the applicant’s claim that the gathering was given a ten minute warning of the police’s arrival appeared implausible and she was unable to provide any meaningful explanation about how the lookout was able to identify the police coming to her home. Further, she appeared to fabricate a number of explanations in response to the Tribunal’s concerns;
    5. the applicant’s claim that the police searched the house where she was hiding in a cupboard but were unable to find her also appeared implausible. Again, she was unable to provide a meaningful explanation for this; and
    6. the applicant’s lack of knowledge of the Bible was indicative of her lack of interest and the Tribunal did not accept that she had difficulty remembering it because of her level of education and her poor memory, particularly given that she was able to give precise information about certain events in China and claimed to have been studying the Bible since 1992;
  1. in light of these findings, the Tribunal found that the applicant had been untruthful in her evidence and did not accept that she had any involvement with Christianity, registered or otherwise, in China. Accordingly, the Tribunal did not accept that she came to the adverse attention of the authorities due to her association with the unregistered church or for any other reason;
  1. having found that the applicant had no commitment to Christianity in China, the Tribunal was not satisfied that her conduct in Australia was undertaken otherwise than for the purpose of strengthening her claim to be a refugee. Pursuant to s.91R(3) of the Act, the Tribunal therefore disregarded such conduct; and
  2. the Tribunal accepted the applicant’s claim that she had no involvement in Falun Gong in China and did not therefore fear persecution in China for this reason.

Proceedings in this Court

  1. The grounds of the amended application were pleaded as follows:
  2. These allegations were supported by several paragraphs of particulars.

Failure to act judicially and to afford procedural fairness

  1. This allegation remained unparticularised notwithstanding the particulars set out in the amended application. The Tribunal’s obligations to afford the applicant procedural fairness are found in div.4 of pt.7 of the Act. Therefore, the Tribunal’s obligation to act judicially in the implementation of its procedures is similarly defined by the statute: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Deane J at 365-367. It is not apparent that the Tribunal failed to observe any of those statutory requirements.
  2. To the extent that the applicant’s allegation concerning the Tribunal’s duty to act judicially involves an allegation of bias, and given the way the allegation is expressed it is not apparent that it does so, this is dealt with below in relation to the allegation that the Tribunal “was preoccupied”.
  3. Consequently, but subject to the reasons which follow, this ground does not disclose jurisdictional error on the part of the Tribunal.

Failure to take into account relevant considerations or integers of the claim

  1. The particulars of the allegations state that the Tribunal had not considered the applicant’s claims thoroughly. However, as the Minister pointed out in his written submissions concerning this allegation that the Tribunal did not take into account relevant considerations and gave no consideration to her various claims:
  2. The applicant did not identify any relevant consideration, separate from the integers of her claim, which the Tribunal was obliged to consider but which it failed to consider.
  3. For these reasons, this ground does not disclose jurisdictional error on the part of the Tribunal.

Failure to use correct country information

  1. The information which the Tribunal chose to use when reaching its decision was a matter for it. Which country information the Tribunal chose to rely upon and the weight which it accorded such information was a matter solely for it. The Court cannot review the Tribunal’s actions in this regard. As a result, this ground does not provide a basis for concluding that the Tribunal’s decision was affected by jurisdictional error.

Tribunal failed to consider the applicant’s claims

  1. This allegation is, in essence, no different to that made in the second ground set out in the amended application. For the reasons expressed in relation to that allegation, this ground, too, does not disclose jurisdictional error on the Tribunal’s part.

Tribunal was preoccupied

  1. This may be an allegation that the Tribunal was biased or that it failed to embark upon a bona fide exercise of the powers reposed in it. Whichever it be, no evidence has been placed before the Court which would support either of such allegations.
  2. An allegation of bias, whether actual or apprehended, is an allegation of considerable seriousness and requires clear proof. The only evidence before the Court which touches on the question is the Tribunal’s decision record. Nothing which it contains would support a conclusion that the Tribunal was so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507; or so conducted itself that a fair-minded lay observer who was reasonably informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an appreciation of bias might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the review before it: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425.
  3. As to any want of good faith on the part of the Tribunal, its decision does not suggest that the Tribunal undertook its review in a manner which was other than careful and conscientious. I do not conclude that the Tribunal did anything other than consider the applicant’s allegations on their merits.
  4. For these reasons, the fifth ground discloses no jurisdictional error on the Tribunal’s part.

Failure to investigate

  1. It is well settled that the Tribunal has, other than in exceptional circumstances which do not exist here, no duty to undertake inquiries. It was for the applicant to place before the Tribunal such information as she wished it to have in order that it could determine whether she met the criteria for the grant of a protection visa. It was not the Tribunal’s role to take steps which the applicant, herself, did not take in her own interests.

Breach of s.91R(3)

  1. Section 91R(3) provides:
  2. The applicant has not indicated in what way the Tribunal is said to have breached s.91R(3). A review of the Tribunal’s decision record discloses that it understood the proper operation of the subsection and applied it accordingly. In particular, having failed to be satisfied that the applicant engaged in church-related conduct in Australia otherwise than for the purpose of strengthening her claim to be a refugee, it disregarded that conduct for all purposes related to its review. This was the correct approach.

Tribunal applied the incorrect test

  1. At pp.2-4 of its decision (CB 134-136), the Tribunal set out, without error, the tests which it was required to apply in determining whether the applicant met the criteria for the grant of a protection visa. Its findings and reasons disclose that the Tribunal properly applied the relevant tests in reaching its decision and, as a result, no jurisdictional error is disclosed by this ground.

Failure to consider all the information

  1. Based on the particulars set out in the amended application, this would appear to be an allegation that the Tribunal failed to have regard to certain country information. However, for the reasons already given, the Tribunal’s decision to not rely on particular country information and to prefer other information is a matter solely for it which cannot be reviewed by the Court. The Tribunal has a duty to have regard to all of the material and evidence before it and if the Tribunal ignores relevant material which may have a direct bearing on its decision and its exercise of power is affected as a result, its decision will be affected by jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323. In this case, the Tribunal, apparently comprehensively, set out in its decision record the evidence and materials which were before it. On the basis of that exposition and the manner in which the Tribunal expressed its decision, it cannot be concluded that the Tribunal failed to have regard to any of the evidence in its possession. As a result, this ground discloses no jurisdictional error on the Tribunal’s part.

Conclusion

  1. Jurisdictional error on the part of the Tribunal has not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 5 August 2009

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