SZOTY v Minister for Immigration & Anor [2011] FMCA 74 (2 February 2011)

Federal Magistrates Court of Australia

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SZOTY v Minister for Immigration & Anor [2011] FMCA 74 (2 February 2011)

Last Updated: 11 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOTY v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 74

MIGRATION – Review of decision of RRT – where applicant out of time to file and requires leave – whether Tribunal properly assessed his adherence to Christianity – whether Tribunal should have set a benchmark and advised applicant of the tests it proposed to apply.

Migration Act 1958 (Cth), ss.91R(3), 424A, 425, 477

Church of the Faith v Commission of Payroll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120 Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 Wang v Minister for Immigration (2000) 105 FCR 458 WALT v Minister for Immigration [2007] FCAFC 2 SBCC v Minister for Immigration [2006] FCA 270 SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 VAF v Minister for Immigration [2004] FCAFC 123; (2004) 206 ALR 471 SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152

Applicant:

SZOTY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2484 of 2010

Judgment of:

Raphael FM

Hearing date:

2 February 2011

Date of Last Submission:

2 February 2011

Delivered at:

Sydney

Delivered on:

2 February 2011

REPRESENTATION

Solicitors for the Applicant:

Newman & Associates

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) Application for extension of time dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2484 of 2010

SZOTY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before me today an application made under s.477 of the Migration Act 1958 (Cth) (the “Act”) for the Court to extend the period of 35 days in which the applicant was required to lodge an application with this Court from a decision of the Refugee Review Tribunal. The decision in question was handed down on 20 July 2010 and it is not disputed that an application for review of that decision should have been made to this Court on or before 23 August 2010. It was, in fact, made on 16 November 2010 following an interview with the applicant by his solicitor, Mr Newman, who appeared today.
2. Section 477(2) is in the following form:
   • “(2) The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
   • (a) an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
   • (b) the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
3. The Court must take into consideration when deciding whether or not to grant the extension of time two important matters: the first being the nature of the explanation given for the delay and, secondly, whether or not the application itself reveals a case that has a reasonable prospect of success. In this particular matter, the delay is approximately three months and the applicant is a person who was, and remains, in immigration detention.
4. The applicant says, through his solicitor, that:
   • “He had an agent at the time and wanted to make an appeal, but the agent demanded a fee, which he was unable to pay as he had no money, that his mother had to raise $20,000 as a security deposit in early June this year for his release, and that he was not allowed to work, and that there was no further funding for lawyers or agents, and that he had never heard of Legal Aid, that no one would lend him any more money and he “gave up” the struggle.”
5. The applicant did not make the affidavit himself and there will be little point in cross-examining Mr Newman upon its contents. However, I have no reason to doubt that these matters may well have been in the forefront of the applicant’s mind, notwithstanding the possibility that others within the detention centre could have told him that he was able to lodge an application and not even have to pay a fee. I am of the view that, if the applicant is able to demonstrate that he has an application that has reasonable prospects of success, nothing in his explanation would detract from it being in the interests of justice to allow the extension.
6. The applicant comes to this Court to argue that point and, effectively, to argue the applicant’s whole case based upon two new grounds of application which I permit to be used as an amendment to the original application and in substitution therefore. The first ground is:
   • “1. The Tribunal erred in its jurisdiction when it discounted the claim of the applicant that he was a Christian by some unstated measure which, when applied, allowed the Tribunal to adjudge him as not meeting a threshold and engaging in deceit when in truth there never was any yardstick or such threshold, and the Tribunal thereby erred in its jurisdiction.
   • 2. The Tribunal erred in its jurisdiction when it failed, prior to the hearing, to issue a notice to the applicant under section 424A of the Act, giving him clear particulars of the perceived discrepancy between his written statement provided to the Department and his oral testimony also given to the Department about what his uncle had told his mother and what he had told the Department.”
7. Paragraph 2 was not pressed but what was pressed was a claim that the Tribunal failed to issue a notice to the applicant under s.424A of the Act giving him clear particulars of the fact that his lack of knowledge of the Bible or Christianity was a matter in issue.
8. It is necessary to give some background to the applicant’s claims. He is a young man who came to Australia on a student visa, together with his mother, who was on a student guardian visa. He arrived in November 2007. He did not complete the seven or eight month course because his mother fell ill and they did not have sufficient funds for the ongoing fees.
9. The applicant claimed that he was born into a Christian family, although in fact, as the evidence came out, his father only became a Christian in about 2003 and his mother in about 2006. He claimed that his father was a leader of an underground church who had been arrested and tortured for his beliefs and that, as a result of his detention and torture, had given information about the applicant and his mother. The applicant, therefore, feared to return to China for two reasons expressed by the Tribunal at [51] [CB 88]:
   • “The applicant claims to fear persecution on religious grounds because of his and his family’s involvement in a Protestant underground church in their hometown of S. The applicant has presented two separate, though related, bases for his claim: first, he fears persecution because of his own Christian belief and the risk he may face if he follows his father’s footsteps and promotes Christianity in his home area and, second, he fears persecution because of his association with his parents (in particular, his father’s past illegal religious work and ongoing faith).”
10. The Tribunal questioned the applicant about his belief and about his adherence to Christianity but explained to the applicant the effect of s.91R(3), which required the Tribunal to disregard his conduct in Australia unless it was satisfied that his motivation was otherwise than to strengthen his refugee claims. The applicant explained that he was not actually born into a Christian family and revealed that he had not been baptised and had only attended a church on a few occasions whilst in China. The applicant told the Tribunal that he spent his time studying and playing and that he was at boarding school for a period.
11. The Tribunal questioned the applicant about his Christian activities whilst in Australia. The applicant indicated that he had only been to church six or seven times. Altogether, he went about three or four times at Padstow and a few times in Lidcombe.
    • “Asked for specifics about his activities from his arrival in Australia in November 2007 till his claim for renewed interest around April 2009, the applicant said that he went to some Christian meetings (a spring festival and family gatherings in Lidcombe) during 2008 but he was unable to go often.” [38] [CB 85-86]
12. The Tribunal’s questioning of the applicant about his religious knowledge is found at [39 to 43] [CB 86]. The Tribunal asked whether, apart from church attendance or similar contacts, the applicant had studied the Bible or other religious material, practised in private or, in any other way, taken advantage of religious freedom here. It asked the applicant what motivated him to be attracted to the faith, noting his limited understanding of it.
13. The applicant told the Tribunal a story of a misplaced wallet in respect of which he and his mother called on Jesus for help and the wallet suddenly appeared to them. This prompted the Tribunal to ask the applicant whether he knew any other stories of Jesus performing miracles. The Tribunal asked the applicant whether he knew the Lord’s Prayer and prompted him in relation to the first line but that was all the applicant was able to recite. The Tribunal indicated to the applicant that it was concerned about what appeared to be his limited knowledge of the religion and asked him to talk about other aspects of Christian practice or knowledge that were important to him.
14. The Tribunal concluded from the responses of the applicant to the matters set out above that it was difficult to reconcile his casual approach to religion and his minimal knowledge with his claim that if he returned to China he would be motivated to join his father in promoting religion and, in doing so, risk persecution. In its findings and reasons, which commence at [50] [CB 88], the Tribunal deals first with the applicant’s Christianity and concluded that it did not accept that he had any genuine interest or commitment to the faith. At [54] [CB 88-90], the Tribunal sets out its reasons for so doing in some detail. They include the limited knowledge of or exposure to Christianity in China and his knowledge of Christianity at the hearing being minimal.
15. In regard to the concerns which the applicant expressed of persecution on the basis of his father’s activities and his association with him, the Tribunal gave reasons commencing at [56] [CB 90] as to why it did not accept that the applicant’s family had a profile of one associated with illegal religious activities. Having found that the applicant was not a Christian and that his parents were not members of an underground church, the Tribunal rejected the applicant’s claims.
16. The applicant’s interesting submissions in regard to the first of the amended claims proceeded from the basis, firstly, that the Tribunal had promulgated a test upon which it based its finding about the applicant’s lack of commitment to the religion. Mr Newman argued that, if a Tribunal was to do such a thing, it needed to explain in detail what the test was and ensure that it was authoritative. He submitted in support of this argument the views of the High Court in Church of the Faith v Commission of Payroll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120. This case is known familiarly as the “Scientology case”.
17. As Mr Newman rightly points out, the High Court in that case posed the question whether Scientology was a religion. It then did its best to define what a religion might be, based upon considerable authority, and put the beliefs and practices of Scientology up against those benchmarks and came to a conclusion. That is what one would expect from the highest court in the land when considering a difficult question such as that. But the method by which a Tribunal of fact comes to a conclusion as to a state of satisfaction that a person is one to whom this country owes protection obligations is not, in my respectful submission, quite the same thing.
18. There have been a large number of cases in which the manner the Tribunal questions an applicant about his or her religious adherence have been considered. Those cases are discussed in the decision of the Full Bench of the Federal Court in Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 and, in particular, in the judgment of Kenny J, with whom Rares J agreed. His Honour’s views on this matter commence at [30] and at [31] commences the review of previous decisions by noting that the notion of a Tribunal acting as an “arbiter” of religious doctrine being a jurisdictional error was first expressed in Wang v Minister for Immigration (2000) 105 FCR 458. Gray J commented, in that case, that:
    • “Religion is a matter of conscientious belief, professed adherence and practice. The RRT seems to have approached the issue on the basis that the appellant had to satisfy the RRT that he was possessed of a specific level of doctrinal knowledge to justify being regarded as a Christian. It is not appropriate for the RRT to take on the role of arbiter of doctrine with respect to any religion.”
19. Kenny J considered the decision of the Full Bench in WALT v Minister for Immigration [2007] FCAFC 2 and then made reference to SBCC v Minister for Immigration [2006] FCA 270. At [37], her Honour set out what, to my mind, provides a very clear exposition of those matters a court should take into account when faced with a claim such as this. Her Honour said:
    • “37 These authorities indicate that the question whether applying an "arbitrary standard" of knowledge of religious doctrine constitutes jurisdictional error is a complex one. I accept that a Tribunal which relies on the premise that "every believer or follower of [a religion] must have certain knowledge or provide certain answers concerning aspects of that religion" may well fail to engage with the question whether the particular applicant before it is in fact a follower of the religion, and so fall into jurisdictional error. There is, however, a difference between: (a) operating from the premise that all believers will have certain specific knowledge; and (b) concluding, after exploring the matter and without any preconception as to what knowledge all believers will demonstrate, that a particular applicant’s lack of knowledge indicates that he is not a genuine adherent of a religion. Further, it must be remembered that the Tribunal’s written reasons typically represent a Tribunal’s concluded view after considering all the evidence. If a Tribunal ultimately finds that an applicant’s lack of particular knowledge is a reason to reject his claim, this finding does not necessarily mean that the Tribunal approached the matter from the outset on the a priori basis that the applicant was required to demonstrate that knowledge.
    • 38 Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
    • 39 If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex.”
20. In this particular case, the questions asked of the applicant by the Tribunal related, firstly, to his church attendance. That, the applicant responded, was slight. Insofar as it related to the applicant’s knowledge of doctrinal matters, I am of the view that the Tribunal acted and questioned the applicant in a manner that clearly demonstrated no preconceived notions. The questions were general.
21. The applicant was asked if there were any other factors motivating him to explore his faith. The Tribunal asked whether, apart from church attendance, he had studied the Bible or other religious materials to take advantage of the freedoms here. It asked the question about miracles only after the applicant had used a miracle that had happened to him to indicate some moving incident that affected his faith. The Tribunal did not assess the miracle stories that the applicant offered it against some benchmark of appropriate miracle stories. It was unable to do that because the applicant was unable to give it any. That the Lord’s Prayer is a cornerstone of the Christian religion in all its guises is notorious, and examining with the applicant his knowledge of that prayer does not, to my mind, allow a conclusion to be drawn that the Tribunal’s questions commenced with an a priori basis that the applicant was required to demonstrate a particular quantity of knowledge about it.
22. It should also be noted that whilst the applicant’s knowledge of Christianity was a matter that the Tribunal took into account when considering its state of satisfaction as to his genuine interest or commitment to Christianity, it also took into account the fact that, although he had been in this country since November 2007 and had had ample opportunity to learn more about the faith, he had not done so, that he had made no inquiries about the availability of Christian practice or facilities within the detention centre and that his evidence about his church visits was vague. These are the additional matters which Kenny J speaks of.
23. Although I am of the view that the Tribunal’s consideration of the applicant’s adherence to Christianity was arrived at following a legitimate examination and that, consistent with the authorities, it did not fall into jurisdictional error in the manner in which it reached its decision that it could not be satisfied that he did have the commitment he claimed, Mr Newman puts forward a further argument. He suggests that, consistent with the decision in the Scientology case, the Tribunal should actually have created a benchmark and explained what that benchmark was and in what way the applicant failed to meet it. Because this argument is so diametrically opposed to the authorities that I have quoted in relation to migration matters, I am unable to give it any support. It seems to me that I am bound by decisions such as SZLSP (supra) to analyse a Tribunal’s decision on the basis that, to set up a benchmark, would be to expose itself to jurisdictional error.
24. It should also be noted that much of the Tribunal’s consideration went to the question of s.91R(3) because the applicant, by his own admission, hardly had any profile as a churchgoer, let alone an activist, whilst a teenager in China. It should never be forgotten that the Tribunal’s task is to assess whether or not the applicant will be persecuted should he return to that country because of what he did there whilst he resided in his home. The Tribunal’s conclusions about the applicant’s activities whilst here took into account its views about his adherence, but also the very limited activity in Australia. Having made a negative finding for the purposes of s.91R(3), the Tribunal could not take into account any of the activity in Australia which, naturally, left it with very little to say on the possibility of the applicant being persecuted should he return to China.
25. The second ground for the applicant’s alleged fear, being his association with his father, was dismissed by the Tribunal on the basis that it was unable to be satisfied that his father had the profile that was attributed to him. That is not a matter about which the applicant now complains. At least he does not suggest that the Tribunal fell into jurisdictional error in so finding.
26. The second ground of application involves, to my mind, and with respect to Mr Newman, a misunderstanding of the requirements of ss.424A and 425, although that section is not specifically pleaded by the applicant. In SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 at [18], Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ confirmed the views expressed by Finn and Stone JJ in VAF v Minister for Immigration [2004] FCAFC 123; (2004) 206 ALR 471, that the word “information”:
    • “...does not encompass the Tribunal’s subjective appraisals, thought processes or determinations... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.”
27. Section 424A itself also excludes from its requirements information that an applicant gave for the purposes of the application for review. The matters referred to by the applicant in his second ground are matters of evidence that the applicant gave and the Tribunal’s assessment of it. I cannot see how failure to comply with this subsection can be prayed in aid in these circumstances.
28. To the extent that the complaint might bring in the type of failure to comply with s.425 considered by the High Court in SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152, I should make it clear that the applicant’s adherence to Christianity, based upon his responses to questions about the religion, was a matter clearly put in issue by the delegate [CB 54]. In any event, these were all matters that were examined by the Tribunal in detail with the applicant.
29. For the reasons given above, I have formed the view that the applicant cannot satisfy me that he has a claim which has reasonable prospects of success should it be argued. In Mr Newman’s typically thorough manner, he has put the applicant’s case at its highest. I am unable to see what further matters he may put if the matter proceeded to yet another hearing.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 11 February 2011