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SZOSV & Anor v Minister for Immigration & Anor [2011] FMCA 42 (1 February 2011)

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SZOSV & Anor v Minister for Immigration & Anor [2011] FMCA 42 (1 February 2011)

Last Updated: 2 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSV & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal was obliged to investigate the applicants’ claims– whether the Refugee Review Tribunal only had regard to country information that was adverse to the applicants’ claims.

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

Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing)
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ)
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 (20 December 2006) at [81] per Young J; NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [8] per Gleeson CJ
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]
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])
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54; 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

Applicants:
SZOSV & SZOSW

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG2355 of 2010

Judgment of:
Emmett FM

Hearing date:
1 February 2011

Date of Last Submission:
1 February 2011

Delivered at:
Sydney

Delivered on:
1 February 2011

REPRESENTATION

The First Applicant appeared by telephone on behalf both applicants, and was assisted by a Fuqing interpreter

Counsel for the Respondent:
D Godwin

Solicitors for the Respondent:
G Johnson (DLA Phillips Fox)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2355 of 2010

SZOSV

First Applicant


SZOSW

Second 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 (“the Tribunal”) dated 27 September 2010 and handed down on 28 September 2010.
  2. The first applicant claims to be a citizen of the People’s Republic of China (“China”) and of Christian faith and Chinese ethnicity (“the Applicant”). The second applicant is the adult son of the first applicant. The second applicant did not at any stage, appear before this Court. The Applicant asserted that at all times, she appeared on behalf of the second applicant and that his claims were entirely dependant on hers.
  3. The issues in this case are whether the Tribunal was entitled to reject the Applicant’s claim of an alleged event in her hometown and the existence of a particular church in circumstances where the Tribunal was unable to find any information about either of those matters; and, whether the Tribunal applied country information “selectively and biasedly”. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
  4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.

Background

  1. The Applicant arrived in Australia on 18 March 2008 having departed legally from China on a passport issued in her own name and a Class TU Subclass 580 student guardian visa valid until 1 February 2010.
  2. The second applicant arrived in Australia on 18 March 2008 having departed legally from China on a passport issued in his own name and a Class TU subclass 571 student visa valid until 21 March 2011.
  3. On 10 September 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
  4. On 24 September 2009, the Delegate refused the Applicant’s application for a protection visa.
  5. On 28 October 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
  6. On 27 September 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
  7. On 1 November 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

  1. 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 s.65(1)(b) mandates that the visa application is to be refused.
  2. 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”).
  3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:
  4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

  1. The Applicant provided a statement, dated 4 September 2009.
  2. The Applicant claimed to be a member of “a traditional Christian family” in Fujian. The Applicant claimed that in 1992, she became pregnant with her second child and was warned by the Government to have the pregnancy terminated in accordance with China’s One Child Policy. The Applicant claimed that, ultimately, she was allowed to have the second child and that she and her husband paid a bribe and a fine. The Applicant claimed that in 1993 she fell pregnant again and paid a fine to the local Government to keep the child. The Applicant claimed that in about June 1995, she underwent a forced tubal ligation which has left her in poor health.
  3. Further, the Applicant claimed that in 2006, she was arrested with 100 other Church members at the Dongshantang Church and detained for 3 days of questioning because of her Christian beliefs.
  4. The Applicant claimed that since her arrest in 2006 her hometown was divided into 2 groups. One group practised at the Dongshangtang Church, which was governed by the Chinese Government, and the other group became an underground Church. The Applicant claimed to be a member of that underground Church and to practise her Christianity privately at home or other secret places, such as her chicken farm.
  5. The Applicant claimed that in about March or April 2007, her religious practice at her chicken farm was discovered and she was again arrested and fined. The Applicant claimed she wrote a confession and was released, however, when she returned to her chicken farm, she found the farm had been “knocked down”.
  6. The Applicant claimed that she was unable to repay borrowings on the farm from private lenders whom she alleged had connections with underworld gangs and Government officials. The Applicant claimed she and her family were threatened with death if she did not repay the debt.
  7. The Applicant claimed that her family continues to be harassed following her departure from China in March 2008 when she entered Australia on a student guardian visa.

The Delegate’s decision

  1. On 15 September 2009, the Applicant was invited to attend an interview with the Delegate. On 24 September 2010, email correspondence between the Delegate and the Applicant’s migration agent indicates that the Department did not receive a response from the Applicant by 22 September 2009 and the decision was made on the information already provided.
  2. On 24 September, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

  1. On 28 October 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
  2. The Applicant provided further documents in support of her review application.
  3. On 25 November 2009, the Tribunal wrote to the Applicant informing her that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 21 December 2009 to give oral evidence and present arguments. Both applicants attended the hearing on 21 December 2009.
  4. However, on 4 February 2010, the Tribunal wrote to the Applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”) by 1 March 2010.
  5. At the request of the applicants, the Tribunal extended the time for response to the s.424A Letter to 9 April 2010. On 9 April 2010 the Applicant responded to the s.424A Letter.
  6. On 5 July 2010, the Tribunal again wrote to the applicants informing them that the Tribunal had considered the material before it but was again unable to make a favourable decision on that information alone. The applicants were invited to appear before the Tribunal on 29 July 2010 to give evidence and present arguments relating to the issues arising in their case.
  7. On 29 July 2010, the applicants attended the Tribunal hearing and gave further evidence.
  8. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
  9. The decision of the Tribunal is accurately summarised by counsel for the first respondent his written submissions as follows:
8. The RRT considered that her oral evidence was evasive and not consistent with a reliable, straightforward account. Her oral and written evidence failed to give a coherent, consistent and straightforward narrative of her religious practice in China and any past persecution as a result[1].
9. The RRT considered that her oral evidence concerning her detention lacked the detail to be expected from someone who had experienced this event[2].
10. The RRT did not consider that the first applicant’s account was credible. It found that she had attended the Hua Mei Tang church built by her great grandfather. The inconsistencies in the evidence were such that the RRT could make no definitive finding as to the fate of the church. It found that it had probably been closed for a period of time when she was a child, however it had since been reopened and she continued to practise her religion freely by attending services there[3].
11. The RRT found that the first applicant was not detained for 3 days following a church gathering[4]. This finding was supported by the failure of the second applicant to refer to this event in his evidence[5]. The RRT also took into account the fact that she did not refer to a fear of detention when answering questions about her fears of returning to China[6].
12. The RRT concluded that at no point did the applicant gather to practise her religion in a church or location called Dongshantang[7].
13. Like the delegate, after considering independent country information, the RRT did not consider the applicant had a profile which would attract adverse attention from Chinese authorities. As an ordinary member and follower of unregistered church gatherings in Fujian she did not face a real chance of persecution now, or in the reasonably foreseeable future[8].
14. The RRT was satisfied that in about 1991 the first applicant and her husband began to operate a chicken farm. However it found that it was not reasonable to believe that officials who attended to collect an environmental levy would arrest the first applicant and her husband because they were caught holding a religious gathering. Nor did it believe that while the first applicant and her husband were at the police station the local officials were able to arrange and carry out the destruction of her chicken farm, particularly as the discovery had been accidental and the officials had been in attendance simply for the purpose of collecting the tax[9]. It also considered independent country information that unregistered churches or gatherings operate in Fujian without being of concern to local authorities.
15. The RRT found that Chinese officials did not discover the applicant attending a religious gathering on her farm, nor did they arrest the applicant or take her to the police station, nor did they destroy her farm because of her religious beliefs and practices[10].
16. The RRT concluded that the destruction of the farm was likely to have beed connected to the fact that the first applicant and her husband owed a significant amount of money to money lenders and had been unable to meet repayments on the loan. The first applicant and her husband still owed this money and the money lenders had been using force to obtain it. It accepted that the husband had been seriously injured for this reason[11].
17. The RRT found that the essential and significant motivation for the persecution feared by the first applicant[12] and second applicant[13] was not their religious beliefs but was the desire of the money lenders to obtain their outstanding debt. The RRT accepted that the money lenders had the capacity to bribe the authorities, but corruption was the motivation for the inaction of the authorities- not the applicants’ religious belief or any other Convention ground[14].
18. The RRT accepted that the first applicant faced harassment and a period of detention in 1995 in order to force her to undergo a sterilisation. However it found that, since her tubal ligation, the authorities had no ongoing interest in the first applicant due to her breach of the family planning regulations in the early 1990s.
19. The RRT accepted that the second applicant was a Christian although not a current practitioner. It noted that he had not claimed to have been persecuted for this reason in the past. When pressed he claimed the persecution he feared was from the people to whom his family owed money. The RRT concluded that, having regard to the nature of the second applicant’s religious practice, as described by him, he would not face persecution in the future by reason of his religious belief.[15]

The proceeding before this Court

  1. The Applicant was unrepresented before this Court, although had the assistance of a Fuqing interpreter. Last night before this hearing, a request was received from the Applicant to attend today’s hearing by telephone. At the commencement of the hearing this morning, counsel for the First Respondent, Mr Godwin, consented to the Applicant attending the hearing by telephone. Accordingly, leave was granted to the Applicant to appear at today’s hearing on behalf of both applicants by telephone.
  2. On 29 November 2010, the Applicant attended a directions hearing before me. The Applicant confirmed that she wished to continue with the application. The Applicant 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, including any transcript of the Tribunal hearings.
  3. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
  4. At the commencement of the hearing this morning, the Applicant confirmed that she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application.
  5. The Applicant confirmed that she relied on the grounds contained in an application filed on 1 November 2010 as follows:
  6. 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 the application generally.

Grounds 1 and 2

  1. In support of Grounds 1 and 2, the Applicant complained that the Tribunal had failed to investigate her claims. I understand the Applicant’s complaints to relate to the Tribunal’s failure to find any information referring to the existence of the Dongshantang Church or that any such Church was closed down or transformed into a registered Church; and, the Tribunal used country information in “a selective and biased manner”.
  2. The Tribunal’s decision record makes clear that the Tribunal put to the Applicant its concerns about the existence of the Dongshantang Church and whether it had become a registered Church. The Tribunal noted the Applicant’s responses. Ultimately, the Tribunal found the Applicant’s evidence in relation to those claims to be inconsistent and generally evasive and unreliable.
  3. The Tribunal rejected her claim ever to have practised her religion in a Church or location called Dongshantang and that she did not have the kind of profile as a member of an unregistered Church that would attract adverse attention from the Chinese authorities.
  4. The Tribunal rejected the Applicant’s claims of ever having been arrested or detained in China because of her religious beliefs or practice and that she has not suffered past persecution by reason of any membership of an unregistered local Church house in China.
  5. In accordance with country information before it, the Tribunal found that unregistered local house Churches in the Fujian province are well tolerated. Accordingly, the Tribunal rejected the Applicant’s claim that she will suffer persecution in the reasonable foreseeable future if she were to return to China because she would continue with her underground Church activities.
  6. Those findings were open to the Tribunal 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 Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
  7. The Applicant made the bare assertion in Ground 2 that the Tribunal selectively used country information in investigating the Applicant’s claims to investigate the Applicant’s claims and its decision was therefore affected by actual bias. However, the Applicant did not make any submission in support of that allegation and the ground was not otherwise supported by particulars or evidence.
  8. It is well established that a tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
  9. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There was no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which was easily ascertained and none was identified by the Applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  10. In any event, the Tribunal’s decision record makes clear that it conducted extensive and relevant research in relation to the existence of a Dongshantang Church or a Church in the Applicant’s village Gaolian. The Tribunal noted that, whilst it was unable to find any country information referring to either Church, it took into consideration that it is reasonable to expect that not every Church in China would be referred to. However, the Tribunal found that it was reasonable to expect that the alleged arrest and detention of 100 protesters as claimed by the Applicant, would have been reported. The Tribunal noted that information before it disclosed that there were no recorded arrests, detentions or imprisonments, of practitioners of unregistered house Churches in Fujian in 2006.
  11. Further, the Tribunal found that the Applicant’s village was not so isolated that authoritative sources would be unaware of such activities taking place. The Tribunal also took into account the likelihood of Chinese authorities controlling news and reports of incidents of persecution in Fujian. However, the Tribunal noted that country information before it disclosed that Fujian is one of China’s “most outwardly focused provinces”.
  12. The Tribunal also had regard to its concerns about the Applicant’s credibility in rejecting her claims about the existence of the Dongshantang Church and its transformation to a registered Church and any arrests made prior to that time.
  13. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. It is a matter for the Tribunal, the country information to which it has regard, and the weight of that information NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per the Court (Gray, Tamberlin and Lander JJ); NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 (20 December 2006) at [81] per Young J; NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [8] per Gleeson CJ.
  14. To the extent that the Applicant alleges bias on the part of the Tribunal, such a claim is serious and requires evidence, such as a transcript of the Tribunal hearing. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, 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]).
  15. The Applicant was directed on 29 November 2010 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including any transcript of the Tribunal hearings, by 24 December 2010. The Order informed the Applicant that evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit. The Applicant was also directed that, if she wished to rely on a tape recording of the Tribunal hearing, she would need to give notice to the Court and the First Respondent by 24 December 2010. However, no step was taken by the Applicant to rely on any such evidence.
  16. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
  17. 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]).
  18. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than 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]).
  19. In the circumstances, accordingly, the allegation of bias or apprehended bias is rejected.
  20. Otherwise, the Applicant’s complaints are more in the nature of a disagreement with the Tribunal’s findings and conclusions. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54; 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).
  21. Accordingly the Applicant’s complaints in support of Grounds 1 and 2 are not made out.

Conclusion

  1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims at 2 hearings; and, had regard to all material provided in support. The Tribunal put to the applicants matters of concern it had about their evidence both at the hearings and in writing and noted the applicants’ responses. The Tribunal also put to the applicants independent country information before it and invited them to comment upon it. The Tribunal identified with particularity, the independent country information to which it had regard. 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.
  2. 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.
  3. 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.
  4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM


Date: 1 February 2011

[1] CB 206 [150]
[2] CB 207[156]
[3] CB 206 [154]
[4] CB 208 [159]
[5] CB 207 [157]
[6] CB 208 [158]
[7] CB 208 [159]
[8] CB 213 [179]
[9] CB 209 [164]
[10] CB 210 [166]
[11] CB 211 [169]
[12] CB 211[170]
[13] CB 217 [196]
[14] CB 211 [170] the case is distinguishable from Minister for Immigration v Khawar [2002] HCA 14; (2002) 210 CLR 1 for this reason.
[15] CB 217 [199]

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