SZMFI v Minister for Immigration & Anor [2009] FMCA 789 (5 August 2009)

Last Updated: 20 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 789

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth) ss.91R, 424, 424AA, 424A, 424C, 425

Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Minister for Immigration and Citizenship v MZXPA and Another [2008] FCA 185; (2008) 100 ALD 312 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 MZXBQ v Minister for Immigration and Citizenship and Another [2008] FCA 319; (2008) 166 FCR 483 MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 SZHVL v Minister for Immigration and Citizenship [2008] FCA 356 SZIZO and Others v Minister for Immigration and Citizenship and Another [2008] FCAFC 122; (2008) 172 FCR 152 SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51; (2009) 255 ALR 407 SZMFI v Minister for Immigration & Citizenship [2008] FCA 1894 SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693

Applicant:

SZMFI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG851 of 2009

Judgment of:

Barnes FM

Hearing date:

5 August 2009

Delivered at:

Sydney

Delivered on:

5 August 2009

REPRESENTATION

Applicant:

In person

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

(1) The application be dismissed.
(2) The applicant pay the costs of the first respondent fixed in the sum of $3,650.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG851 of 2009

SZMFI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 15 March 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
2. The applicant, a citizen of the People’s Republic of China, arrived in Australia in September 2007 and applied for a protection visa in October 2007. She claimed to fear persecution as a member of an underground Catholic church in China. The application was refused and the applicant sought review by the Tribunal. The Tribunal affirmed the decision of the delegate in April 2008. The applicant sought review in this Court and on appeal to the Federal Court. The Tribunal decision was quashed by orders of the Federal Court of 26 November 2008 (see SZMFI v Minister for Immigration & Citizenship [2008] FCA 1894).
3. The Tribunal as reconstituted wrote to the applicant referring to the remittal on 22 December 2008 and on 16 January 2009 invited the applicant to attend a Tribunal hearing. The applicant attended the hearing. The only material before the Court as to what occurred in that hearing and in the first Tribunal hearing is the Tribunal accounts of the hearings.
4. It is apparent from the Tribunal account of the second hearing that it raised with the applicant a number of matters of concern and, at the conclusion of the hearing, put to her that it accepted that she was a Catholic but that it had to consider whether it accepted that she had been involved in the unregistered Roman Catholic Church in China. It referred to independent country information which it put to the applicant and other concerns that it had, in particular in relation to the accounts given by her husband and her brother in their own protection visa applications, that they were from Catholic families (contrary to her claim that she had converted to Catholicism in 2005).
5. The applicant provided a written response to the concerns raised by the Tribunal, consisting of a statutory declaration and a document described as an “Explanatory Note” being a letter from the Pope to Chinese Catholics.
6. In its reasons for decision the Tribunal set out the details of the applicant’s claims and her post-hearing response. It recorded that, as it had indicated to the applicant in the hearing, it considered there were good reasons for concluding that she was not telling the truth in her claims regarding her involvement in the unregistered Roman Catholic Church in China. It gave reasons for this, referring to the fact that it had difficulty accepting her account of her involvement in spreading the gospel or that she would have been as effective in doing so as she claimed. It had regard to the fact that when asked about this, the applicant had not been able to go beyond some fairly basic statements. While she had referred to an instance of preaching the gospel to a particular person, the Tribunal had difficulty with the applicant’s claim that an assertion of her personal beliefs would have deeply touched the woman. It addressed her explanations for her effectiveness, including the claim that she had spoken to the woman in her local dialect and could not describe this in Mandarin (the hearing having been conducted with a Mandarin interpreter at the applicant’s request) and the applicant’s comments provided after the hearing. It found that the applicant’s comment that the woman’s husband had given up gambling and had become a Catholic, did not add anything to the applicant’s explanation of how she spread the gospel, either to these individuals or more generally. It found the applicant’s account of her involvement in spreading the gospel was implausible.
7. Nor did the Tribunal accept the applicant’s account of how she spread religious propaganda, which it found was not consistent with her claims at the hearing conducted by the Tribunal as originally constituted. The Tribunal addressed the applicant’s explanation in that respect at the second hearing (when she suggested that there had been two different kinds of propaganda material distributed in different ways). It also had regard to her suggestion in comments after the hearing that what she said had been mistranslated by the interpreter at each of the hearings and her concession that she had not told the first Tribunal that there were two categories of material. The Tribunal was not persuaded on the applicant’s evidence that she was involved in distributing books or pamphlets as claimed.
8. The Tribunal also found difficult to accept as credible the applicant’s claimed involvement with Catholic groups in villages in a particular area. It found it difficult to accept the claim that groups had met together for Mass in a village at 5 am without attracting attention.
9. The Tribunal did not accept that if the Public Security Bureau (the PSB) had been interested in the applicant as claimed, she would not have been questioned after the arrest of a named colleague in June 2007. It had regard to the fact that she claimed that she was already of interest, having been arrested and questioned in March 2007 and on five or six occasions after that. It addressed the explanations she provided in her original application and also in the post-hearing comments, but remained of the view that it was difficult to accept that if the applicant was telling the truth she would not have been questioned again after this arrest, as there must have been some basis for the PSB to suspect her or she would not have been arrested in March 2007 as she claimed, or every few weeks thereafter until May 2007.
10. The Tribunal did not consider it credible in such circumstances that if the PSB had arrested someone the following month who by the applicant’s account provided fresh evidence in relation to Catholic groups in the local area, it would not have questioned the applicant again.
11. The Tribunal also had regard to the fact that, as it had put to the applicant, both her brother and her husband had claimed in their respective protection visa applications that they were from Catholic families. This was said to cast doubt on her claims that none of her family were Catholics and that she had only converted to Catholicism in 2005. It considered the applicant’s explanation in this respect, including a photograph she said showed her with a priest in the underground Catholic Church, but found nothing in the evidence, apart from the applicant’s claim, to indicate that this person was a priest in the underground or unofficial Catholic Church, as distinct from the official Catholic Church in China.
12. The Tribunal accepted that the applicant was a Catholic, accepting the evidence of Father McGee to the first Tribunal that she seemed at home with Catholic practice when she first started attending church in Australia. However it had regard to independent country information suggesting that the practices of the official and unofficial Catholic churches in China were the same and found her familiarity with Catholicism was consistent with her brother’s evidence that they came from a Catholic family. It accepted that the applicant came from a Catholic family and on this basis was satisfied that she had attended a particular Catholic church in Australia otherwise than for the purpose of strengthening her claim to be a refugee. It therefore did not disregard this conduct under s.91R(3) of the Migration Act 1958 (Cth).
13. However for these reasons the Tribunal did not accept the claims the applicant made about her involvement with the underground Catholic Church in China, including that she was involved in spreading the Gospel, distributing religious propaganda, or organising Catholic groups in a particular area. Nor did it accept that she was arrested or questioned, that she was ever suspected of going to illegal gatherings in China, or ever of interest to the authorities. It did not accept that since she left China her parents and siblings had been investigated by the police or that her home had been searched by the PSB.
14. As the Tribunal did not accept that the applicant had been involved in the unregistered or unofficial church and as Catholicism was one of the five recognised religions in China, the Tribunal did not accept that there was a real chance that she would be persecuted by being prevented from practising her religion in China or otherwise persecuted for reasons of her religion if she returned to China now or in the reasonably foreseeable future.
15. Finally, the Tribunal found nothing in the information before it to suggest, and nor had it been submitted, that there was a real chance the applicant would be persecuted for reasons of her attendance at a Catholic church in Australia if she returned to China.
16. The applicant sought review of the Tribunal decision by application filed in this court on 9 April 2009. She has not filed an amended application or written submissions, but was given the opportunity to address the grounds she relied on in the hearing today.
17. The application contends generally that there was an error of law in the Tribunal decision and that there was procedural error “constituting an absence of natural justice”. The particulars to these two grounds are that there was no evidence that the Tribunal had taken any “genuine attempt to consider” the applicant’s evidence, particularly her written evidence submitted to the Tribunal. The application then sets out in full the 13 paragraphs in the applicant’s response (in her statutory declaration sworn 28 February 2009) to the issues raised at the Tribunal hearing. It is contended that there was procedural error constituting an absence of natural justice and that the decision “included” apprehended bias.
18. Dealing first with the contention that the Tribunal failed to give genuine consideration to the applicant’s post-hearing evidence, contrary to the applicant’s claims it is apparent from the Tribunal reasons for decision that it not only summarised the applicant’s response to the issues raised at the Tribunal hearing in its account of the evidence before it, but moreover in its findings and reasons (as referred to above), it discussed but did not accept the applicant’s comments as an explanation for or in satisfaction of its concerns. The Tribunal’s findings in that regard were open to it on the material before it for the reasons that it gave. Insofar as the applicant might be seen to be seeking merits review, merits review is not available in this Court.
19. It has not been established that the Tribunal failed to attempt to consider the evidence, let alone that it failed to do so in a manner giving rise to or constituting a jurisdictional error. In particular, the material before the Court does not establish that the Tribunal ignored any relevant consideration in a sense of any claim made by the applicant or arising on the material before it that it was obliged to consider (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] – [63] and [68]). The Tribunal had regard to the applicant’s response to the issues raised at the Tribunal hearing. It did not accept the applicant’s claims, but it did consider them.
20. Indeed, there is no indication that the Tribunal ignored any evidence of the applicant, although I bear in mind that a failure to attend to evidence, even probative evidence, may constitute a factual error but does not of itself amount to a jurisdictional error (see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] and also note that in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [59] it was suggested that a failure to give genuine and proper consideration to evidence does not on its own amount to an error going to the Tribunal’s jurisdiction).
21. The applicant also claimed that there was a denial of natural justice and apprehended bias. There is nothing in the material before the Court to establish actual or apprehended bias either arising from the Tribunal’s account of the manner in which it conducted the hearing or from the Tribunal reasons for decision. Insofar as the applicant relies on the Tribunal reasons for decision, it would only be in rare and extreme circumstances that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal (see SZHVL v Minister for Immigration and Citizenship [2008] FCA 356). This is not a case in which it can be said that the fact finding was conducted in a manner which could give rise to a reasonable apprehension of bias as considered in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264.
22. Insofar as the applicant might be seen to be taking issue with the fact that the Tribunal indicated a preliminary view in the course of the hearing, this contention is not such as to establish apprehended bias (see Minister for Immigration and Citizenship v MZXPA and Another [2008] FCA 185; (2008) 100 ALD 312 in particular the discussion by Sundberg J of this issue at [12] – [28]). An allegation of bias must be firmly established and there is no transcript of the hearing before the Court.
23. I also note that it is open to a Tribunal to test, and indeed vigorously test, an applicant’s claims. Apprehended bias in the sense considered by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 is not made out. Nor is actual bias as considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
24. Insofar as the applicant claimed that there was procedural error in the Tribunal’s decision, she has not particularised any breaches or alleged breaches of the procedural code in Division 4 of Part 7 of the Migration Act. Three issues were raised by the solicitor for the first respondent in this respect.
25. The first is the possibility that in her oral submissions the applicant sought to raise a claim of incorrect interpretation at the Tribunal hearing. It is the case that where there has been inadequate interpretation that may in particular circumstances mean that the invitation extended to an applicant under s.425 of the Act is not a meaningful invitation, on that basis the Tribunal may fall into jurisdictional error. However the particular issue raised by the applicant was a reference to her claim in the post-hearing written submissions to the Tribunal that there had been a mistranslation at the first Tribunal hearing of material she described as “Essentials of the Catholic” that an interpreter had described as a book of teaching and that this mistranslation had been repeated at the second hearing.
26. The Tribunal considered this claim in its reasons for decision. It referred to the fact that the applicant had not explained why she had not given this explanation at the second hearing and that she had conceded that she had not told the first Tribunal that there were two categories of material as she said at the second hearing. In its findings and reasons, while the Tribunal referred to this issue, it remained of the view that it was difficult to accept on the basis of the applicant’s evidence that she was involved in distributing books or pamphlets as claimed having regard to the differences between the accounts she gave at the two hearings.
27. It does not appear to be suggested that the claimed mistranslation was such as to constitute a failure to afford a meaningful opportunity under s.425 of the Act but in any event there is no evidence before the Court (such as transcripts of the Tribunal hearings) to support any such contention. It has not been established that there were errors in interpretation of the nature considered by the Full Court of the Federal Court in Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230. No breach of s.425 is made out.
28. The next issue raised by the solicitor for the first respondent is the Tribunal’s consideration of the evidence of Father McGee given to the first Tribunal. It appears that this matter was raised because the first Tribunal decision and its treatment of Father McGee’s evidence in support of the applicant was a matter considered by Rares J in SZMFI v Minister for Immigration & Citizenship [2008] FCA 1894 when the applicant’s application for review of the first Tribunal decision came before his Honour on appeal from this court. Rares J found that the Tribunal as originally constituted was obliged to put to the applicant under s.424A (or by using s.424AA of the Act) information Father McGee had given it that he could not recall when he had his first contact with the applicant. However the Tribunal as originally constituted formed the view that the applicant’s knowledge of Catholicism and Christianity was consistent with her having obtained that knowledge in Australia and used that as a reason or part of the reason for finding that she had not practised Christianity in China (see SZMFI at [32]). In that context the fact that the Tribunal had information that Father McGee could not recall having direct contact with the applicant after she started to attend church at all or at any particular time could be said to be relevant in relation to the applicant’s knowledge of Christianity and Catholic doctrine and when she first gained it. Rares J found that the Tribunal as originally constituted had failed to comply with s.424A of the Act in circumstances where it gave Father McGee’s evidence about the applicant’s activities in China little weight because he could not recall having direct contact with her after she started to attend the church. His Honour found that the Tribunal was obliged to put the relevant information from Father McGee to the applicant for comment under s.424A.
29. The Tribunal as reconstituted summarised the evidence given by Father McGee at the first Tribunal hearing, including the fact that when the applicant first started attending church her knowledge of Catholicism and Christianity was what he would have expected of an average Catholic person of regular practice, that she seemed at ease with Catholic practice and with other members of the community and seemed to be familiar with the rituals and that Father McGee had no problem in judging that the applicant had been a genuine Catholic when she had come here and that the basis for this was that she seemed to be at home with Catholic practice.
30. While the starting point in assessing whether there is an obligation on the Tribunal to comply with s.424A and whether material is information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review is not the reasons for decision it is, nonetheless, open to the Court to have regard to the Tribunal’s findings in determining whether to draw an inference that the Tribunal considered Father McGee’s evidence to be information that would be part of the reason for affirming the decision, in short, whether it considered that evidence to be adverse (see SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721 at [16] and SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 at [18]).
31. The findings of the Tribunal on remittal tell positively against the drawing of such an inference and there is otherwise no evidence before the Court that the Tribunal attributed any adverse significance to Father McGee’s evidence. Apart from summarising his evidence, in its findings and reasons, in contrast to the approach taken by the Tribunal as originally constituted, the Tribunal accepted that the applicant was a Catholic having regard to Father McGee’s evidence. It accepted Father McGee’s evidence that the applicant seemed at home with Catholic practice when she first started attending church in Australia. This was not adverse to the applicant.
32. The Tribunal in no way used Father McGee’s evidence or any aspect of his evidence (including the matter of concern to Rares J) in any manner adverse to the applicant. Critically, in distinction to the Tribunal as originally constituted, the Tribunal accepted that the applicant was a Catholic in China, albeit not a member of the underground church.
33. In those circumstances, I am not persuaded that it can be inferred that the Tribunal at the relevant time considered any aspect of the evidence of Father McGee to be a matter that would form part of its reason for affirming the decision under review (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [22]). I note the suggestion in SZBYR that the court should not seek to unbundle the reasoning of the Tribunal (and see MZXBQ v Minister for Immigration and Citizenship and Another [2008] FCA 319; (2008) 166 FCR 483 at [25]). I also note that there is no suggestion that Father McGee’s evidence was discussed at the hearing conducted by the Tribunal as reconstituted in a manner that might give rise to an inference that at any relevant time the Tribunal considered that it would be a reason, or a part of the reason for affirming the decision under review. I am not persuaded that the Tribunal’s s.424A obligations were enlivened in relation to any aspect of the evidence of Father McGee in these circumstances.
34. Finally, in supplementary submissions the first respondent addressed the implications of the recent decision of Raphael FM in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 in relation to the letter sent to the applicant by the Tribunal acknowledging remittal and inviting the applicant to provide documents and written arguments. The short answer to these concerns is that this letter sent to the applicant by the Tribunal as reconstituted (the Tribunal decision before the Court in these proceedings) is in relevantly identical terms to the letter considered by the Full Court of the Federal Court in MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 at [7]. It was common ground in that case and accepted by the Full Court that such a letter did not come within s.424(2). The reason given in MZXRE at [8] was that the letter did not specify a date in accordance with s.424C(1)(b) before which any information had to be provided. In addition, in that letter the applicant was invited to provide “documents” and “written arguments”. As Raphael FM pointed out when considering MZXRE in SZNAV at [29], such a letter does not make a request for information and hence, consistent with the approach taken by the Federal Court in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51; (2009) 255 ALR 407 (at [110]), it is not a request for information as such and hence not a request for additional information under s.424(2) of the Act. On either of these bases, the Tribunal’s acknowledgment of remittal of 22 December 2008 is not within s.424(2) of the Act.
35. The first respondent’s submissions also canvassed the fact that the Tribunal as originally constituted had written to the applicant in terms relevantly the same to those considered in SZNAV. I do not consider that this is a case in which it is necessary to consider the correctness of the approach in SZNAV, in circumstances where the decision of the Tribunal as originally constituted was set aside on review and where any breach by that Tribunal has no bearing on whether the Tribunal as reconstituted committed jurisdictional error. As the solicitor for the first respondent pointed out, if it were otherwise, the Tribunal could never make a valid decision.
36. Even if the first Tribunal had erred in the manner suggested in SZNAV, the Tribunal as reconstituted recommenced the process in the manner indicated by inviting the applicant to provide documents or written arguments. Hence, whether or not a technical argument can be mounted that there was a breach of s.424 by the Tribunal as originally constituted in this instance, as there has been a remittal, the matter has been reconsidered by the Tribunal, and there is no evidence of any unfairness to the applicant, or that she was denied the opportunity to put material before the Tribunal, I would, in any event, refuse relief on discretionary grounds.
37. Insofar as it is necessary to do so, I would regard these as exceptional circumstances, having regard to the fact that after the original letter by the Tribunal as originally constituted, the applicant was invited to and attended a Tribunal hearing, and a letter was sent to her under s.424A of the Act (albeit that the first Tribunal failed to put to her the particular issue of Father McGee’s evidence), she had an opportunity to respond to issues that were put to her, and when the matter was remitted the Tribunal gave her the opportunity to provide further documents and written arguments, invited her to a further hearing at which it raised matters of concern and gave her the time to, and the opportunity to, provide further comments and information after the hearing, an opportunity which she took (see SZIZO and Others v Minister for Immigration and Citizenship and Another [2008] FCAFC 122; (2008) 172 FCR 152 at [97] per Lander J with whom Moore and Marshall JJ agreed).
38. The applicant did not raise any concern in this respect. In all the circumstances, if I am wrong and there was such a jurisdictional error by the Tribunal as originally constituted that in some way obliges the Tribunal as reconstituted to send a fresh “original” letter acknowledging the application (notwithstanding that that would seem impracticable to do after a matter was remitted), I would, as indicated, decline relief. In all of the circumstances, the application should be dismissed.
39. The applicant has been unsuccessful. The first respondent seeks the costs of these proceedings in the sum of $3,650. This is considerably less than the amount provided for in the Schedule to the Federal Magistrates Court Rules. I consider it is appropriate in light of the nature of this and other similar matters. The applicant indicated that she was not working. That is however not a reason in this case for departing from the normal principle that the unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 17 August 2009