SZNAB v Minister for Immigration & Anor [2010] FMCA 65 (3 February 2010)

Last Updated: 5 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNAB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 65

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 424A; 424A(3); 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others [1986] HCA 40; (1986) 162 CLR 24

Applicant:

SZNAB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2528 of 2009

Judgment of:

Emmett FM

Hearing date:

3 February 2010

Date of Last Submission:

3 February 2010

Delivered at:

Sydney

Delivered on:

3 February 2010

REPRESENTATION

Applicant appeared in person assisted by a Mandarin interpreter

Solicitors for the Respondent:

Mr A. Markus, Australian Government Solicitor

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2528 of 2009

SZNAB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 22 September 2009 and handed down the same day.
2. The applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith (“the Applicant”).
3. The Applicant arrived in Australia on 11 March 2008 having departed legally from Beijing on a passport issued in his own name and a subclass 456 temporary business visa issued on 22 February 2008.
4. On 24 April 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.
5. On 14 June 2008, a delegate of the First Respondent refused the Applicant’s application for a protection visa.
6. On 21 July 2008, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
7. On 21 October 2008, the Refugee Review Tribunal affirmed decision of the Delegate not to grant a protection visa.
8. On 2 December 2008, the Applicant filed an application in this Court seeking judicial review of the Refugee Review Tribunal’s decision.
9. On 3 June 2009, Federal Magistrate Driver remitted the matter to the Refugee Review Tribunal for determination according to law.
10. On 22 September 2009, the Refugee Review Tribunal, differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
11. On 20 October 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

12. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
13. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
14. Australia has protection obligations to a refugee on Australian territory.
15. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
    • “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
16. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s claims and the Tribunal decision

17. The Applicant’s claims and the Tribunal decision are accurately summarised in the written submissions of the first respondent. Those submissions refer to the first Refugee Review Tribunal as T1 and the second Tribunal as T2. They are as follows:
    • “Claims and evidence
    • The applicant is a citizen of the People's Republic of China, who claims to fear persecution on the basis of his religion.
    • The applicant claimed to have encountered Christianity whilst working in Korea, and to have received a membership certificate from a church there (the applicant submitted a photocopy of a card in Korean [RD 4] with his application for a protection visa). He claimed that he returned to China in 2005, but was unable to find a Christian church there. He claimed that he finally found an open Catholic Church in his home city of Tianjin, and that he attended that church twice, before the police prohibited further worship there. He claimed that, since his arrival in Australia, he had begun attending church services here.
    • The delegate refused to grant the visa on the basis that the Chinese government had not prohibited Christian worship, and the delegate was not satisfied that government interference was the reason that the applicant had failed to attend any Christian services in China since 2006.
    • At his hearing before T1 the applicant alleged for the first time that the police had become interested in him after he had harboured an underground priest. T1 found the applicant's claims to be implausible. Although it accepted that he had attended some Christian services in Australia, it disregarded that conduct pursuant to s.91R(3). As noted above, the Minister conceded that the T1 had misapplied s.91R(3) by adopting a "dominant purpose" test when assessing the applicant's motive for church attendance in Australia.
    • At the hearing before T2 the applicant submitted a baptismal certificate and some photographs (RD 120 ff). The applicant claimed at the hearing that he had joined an underground church when he returned to China from Korea. He also claimed that he had decided not to return to the Catholic church in Tianjin because he realised it was an official church, and its teachings contradicted the Bible. The applicant also claimed that police had questioned him about harbouring the priest, and that they continued to harass his family, seeking to know his whereabouts. Following the hearing, the applicant submitted supporting letters from his pastor and co-parishioners (RD 126-128).
    • Tribunal decision
    • In light of the applicant's vague responses when questioned about his experience of Christianity in Korea, T2 was not satisfied that he was a member of a Christian community there. T2 noted that the applicant was unable to name the churches he claimed to have attended or their denominations, nor had he submitted any documentary evidence that he had any contact with a church in South Korea.
    • T2 also found that the applicant's evidence in relation to his attendance at Xikai Catholic Church in Tianjin was inconsistent, both internally and with the independent country information, and vague. It therefore did not accept that he had attended that church. The applicant was unable to accurately describe the church. The applicant claimed to have visited this prominent church only for the first time some 18 months after returning from Korea, where he claimed to have developed his interest in Christianity. At first the applicant claimed to have approved of the church on his first visit, thus explaining his decision to return. Later he claimed to have disapproved of the teachings he encountered on his first visit, but was unable to explain why, if this was the case, he had returned. Finally, the applicant's claim that the authorities had been interfering with the Xikai Church was not supported by the independent country information, and seemed implausible given it is an officially-sanctioned Chinese Catholic Patriotic Association.
    • Given that T2 did not accept that the applicant had attended the Xikai Church, it did not accept his claim to have met an underground priest there, or his claim to have harboured the priest in his home.
    • T2 found that the applicant's claims of official interest in him, including his claim to have been questioned in his home, were implausible. It noted that the applicant had not mentioned the priest at all to the delegate, and that his claim to have been questioned by police about the priest had been made for the first time only to T2. It noted that the police would have had many opportunities to arrest the applicant, and that his explanation that he had avoided them by staying with a friend evolved under questioning and was inconsistent with his previous evidence that he had remained living at home.
    • Finally, T2 noted that the applicant's claims to have been involved with an underground church in China were brief and had not been made to T1. It therefore did not accept that they were credible. It thus was not satisfied that the applicant had been involved in any Christian activities before entering Australia.
    • T2 accepted that the applicant had been involved in Christian activities in Australia, however, as it was satisfied that he had not been truthful about his activities in China and Korea, it was not satisfied that he had engaged in conduct in Australia otherwise than for the purposes of strengthening his claim to be a refugee. Accordingly, it disregarded that conduct pursuant to s.91R(3).
    • T2 was satisfied that the Chinese authorities had no interest in the applicant before his departure, and that the applicant would not become involved in any underground churches if returned to China. In conclusion T2 found that the applicant did not have a well founded fear of persecution in China for a convention reason and affirmed the delegate's decision.”

The proceeding before this Court

18. The Applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
19. On 4 November 2009, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. At that time, the Applicant was directed to ensure that any transcript of the Tribunal hearing upon which he may wish to rely was verified by affidavit. I explained to the Applicant that the Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal.
20. The Court referred the Applicant to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Court also provided the Applicant with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
21. At the commencement of the hearing, the Applicant confirmed that he relied on the grounds contained in an application filed on 20 October 2009 as follows:
    • “1. The RRT’s decision was affected by jurisdictional error as it failed to consider the documentary evidence I provided.
    • 2. The RRT breached its obligation under s.424A of the Act as it failed to invite me to comment on information.”
22. Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of his application generally.
23. The Court explained to the Applicant that the grounds of his application made bare assertions that did not disclose any error capable of review by this Court.

Ground 1

24. In relation to ground 1, the Court asked the Applicant what was the documentary evidence that he said he gave to the Tribunal and which it had failed to consider. The Applicant was unable to identify any such document. However, the Applicant complained that the Tribunal had disregarded the evidence of his fellow church members in Australia in finding that he had engaged in such conduct in Australia only to strengthen his claims to be a refugee. I asked the Applicant were those the documents that he thought the Tribunal had failed to consider and the Applicant confirmed that they were.
25. A fair reading of the Tribunal’s decision record makes clear that the Tribunal both considered and accepted the statements by his fellow church members in Australia. The Tribunal accepted that the Applicant has been involved in Christian activities since his arrival in Australia, has been baptised in Australia and that he is regarded by the signatories of the supporting letters from his fellow church-goers as a genuine Christian.
26. In the light of the Tribunal’s findings that the Applicant had not been truthful about his religious activities in South Korea and China, the Tribunal was not satisfied that the Applicant had engaged in religious activities in Australia for any reason other than to strengthen his claims to be a refugee. Accordingly, and in accordance with s.91R(3) of the Act, the Tribunal disregarded the Applicant’s conduct in Australia in considering whether he has a well-founded fear of persecution in China for a Convention-related reason. In support of that finding, the Tribunal also had regard to its findings that authorities in China had no interest in arresting or otherwise harming the Applicant before he left China for any Convention-related reason; and, that the Applicant would not become involved in any unregistered or underground church if he were to return to China.
27. In making its adverse credibility findings, the Tribunal had regard to the inconsistencies in the Applicant’s evidence of any Christian activity either in South Korea or China. The inconsistencies were both internal within the Applicant’s own evidence and were also inconsistent with independent country information before the Tribunal. The Tribunal put some of those inconsistencies to the Applicant, however, found his explanations to be unsatisfactory. The Tribunal also found some of the Applicant’s claims to be implausible. Ultimately, the Tribunal was not satisfied that the Applicant was involved in any Christian activities before his arrival in Australia and was not satisfied that he had any interest in doing so.
28. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Court (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
29. Accordingly, ground 1 is not made out.

Ground 2

30. In relation to ground 2, the Court explained to the Applicant the obligations of s.424A of the Act and asked the Applicant what was the information that he asserts the Tribunal should have given to him for comment. The Applicant confirmed that it was only the inconsistencies to which the Tribunal had regard in making its adverse findings which he asserted was information that enlivened the obligations of s.424A of the Act. Plainly, such a complaint is misconceived. It is well settled that inconsistencies in an applicant’s evidence is not “information” in the sense that that word is used in s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]).
31. Otherwise, the information to which the Tribunal had regard was information excluded from the obligations of s.424A of the Act by reason of s.424A(3) of the Act.
32. Accordingly, ground 2 is not made out.

Other grounds

33. In oral submissions to this Court, the Applicant also complained that the Tribunal had found his description of the church he claimed to attend in Tianjin to be ‘vague’. The Applicant stated that it is difficult to describe such a monument. In fact, the Tribunal found the Applicant’s description of the physical appearance of the exterior of the church to be “entirely inconsistent with the evidence before the Tribunal about its appearance (see china.org.cn)”. The Tribunal did not find the Applicant’s description to be ‘vague’ but wrong. In the circumstances, as stated above, the Tribunal’s finding was open to it on the evidence and material before it and for the reasons it gave. There is no error disclosed in the Applicant’s complaint that goes to the Tribunal’s jurisdiction.
34. At the conclusion of the first respondent’s submissions, the Applicant was invited to say anything in response or anything further in support of his application generally. The Applicant made two further claims.
35. The first new claim was that the Tribunal had failed to consider a membership certificate from the church he attended in South Korea. The Applicant confirmed that the certificate to which he referred was a membership card, a copy of which is in the bundle of relevant documents marked Exhibit 1R. The card looks like a credit card. Exhibit 1R also discloses a request from the Applicant’s migration agent, dated 22 April 2008, as to whether or not the card is a religious membership card and, if so, which religion. The response to that enquiry is disclosed in an email, dated 22 April 2008, also in Exhibit 1R, which stated that the membership card is a bank card stating that the cardholder is a member of a charity organisation called “Foreign Labours House”. The email stated that the card does not mention any religion, “but this kind of organisation could be a Christian charity”.
36. I accept the submissions of the solicitor for the first respondent that this evidence was not capable of establishing whether or not the Applicant had attended church in South Korea, as he had claimed. A fair reading of the Tribunal’s decision record discloses that the Applicant claimed to have been introduced to Christianity in South Korea and “attended various churches there”. The Tribunal noted that, when it asked the Applicant in what towns or cities in South Korea he had attended church, he said he had gone to two churches in South Korea, one in Anshan and one in Jinhia city. The Applicant said he could not recall their names. The Tribunal explored with the Applicant the denomination of the churches and found the Applicant’s answers to be vague and inconsistent with his claim to have applied to be baptised in one of the churches. The Tribunal also explored with the Applicant as to whether he considered himself to have become a Christian whilst in South Korea and noted that the Applicant did not think he was a Christian because he had not been baptised. The Tribunal found that, if the Applicant was sufficiently committed to his religious beliefs to be considering baptism in South Korea, it was reasonable to expect him to know the name, or at least the denomination, of the church in which he was seeking to be baptised. The unsatisfactory nature of the Applicant’s evidence caused the Tribunal to have “considerable doubt” as to whether the Applicant was a member of any Christian community or had attended church in South Korea. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.
37. I accept the submission of the first respondent’s solicitor that the Tribunal did not commit jurisdictional error in failing to make any specific finding in relation to the membership card. The membership card was not inconsistent with the Applicant’s claims, however, as stated above, it says nothing about whether or not the Applicant attended church in South Korea.
38. The second new claim was the Applicant’s bare allegation that he felt the Tribunal had some form of bias. When I explored that allegation with the Applicant, he confirmed that his feeling was because of the Tribunal’s findings and conclusions. As stated above, those findings and conclusions were open to the Tribunal on the evidence and material before it and for the reasons it gave. The mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
39. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
40. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]- [32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [115]).
41. At the heart of the Applicant’s complaints about the Tribunal’s decision is his disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54, [194]; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J).

Conclusion

42. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
43. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
44. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
45. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 3 February 2010