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SZQBK v Minister for Immigration & Anor [2011] FMCA 829 (12 August 2011)
Last Updated: 17 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZQBK v MINISTER FOR
IMMIGRATION & ANOR
|
[2011] FMCA 829
|
MIGRATION – Review of decision of the
Refugee Review Tribunal – applicant seeking impermissible merits review
–
findings open to Tribunal on what was before it – no unfairness in
conduct of Tribunal hearing – no jurisdictional error
– application
dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Delivered on:
|
12 August 2011
|
REPRESENTATION
Counsel for the Respondents: |
Ms A Mitchelmore
|
Solicitors for the Respondents: |
Sparke Helmore
|
ORDERS
(1) The application made on 23 March 2011 is
dismissed.
(2) The applicant to pay the first respondent’s costs set in the amount of
$5,500.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
SYDNEY
|
SYG 532 of
2011
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
- I
have before me today an application made on 23 March 2011 under s.476 of the
Migration Act 1958 (Cth) (“the Act”), seeking review of a
decision of the Refugee Review Tribunal (“the Tribunal”), made on
17
February 2011, which affirmed a decision made by a delegate of the
respondent Minister to refuse a protection visa to the applicant.
Background
- The
applicant is a national of the People’s Republic of China
(“China”) who arrived in Australia on 13 August 2007
on a
student visa (Court Book – “CB” – CB 14). This visa was
said to be in force until 15 March 2010. On
21 May 2009 the
applicant’s education provider in Australia reported that the applicant
had ceased studying on 24 April 2009.
Subsequently the applicant was detained by
the immigration authorities in June 2010 as an “unlawful non
citizen” in Australia
(CB 72). He applied for protection on 4 June
2010 (CB 1 to CB 32). The applicant appears to have had some assistance in the
making
of the application (CB 8, CB 26 to CB 29).
Claims to Protection
- The
claims to protection were set out in a statement annexed to the protection visa
application (CB 30 to CB 31).
- In
short, the applicant claimed to be of Catholic religion, and to have attended
“secret house churches” with his parents
in China. He said that he
had been “despised” at school following his parents’ arrests
in 2006. He came to Australia
on a student visa as his parents “wished
that I could live in a free country”.
- He
also claimed that in 2009 his parents were again arrested as a result of
attendance at a “house” church gathering.
His father had been beaten
and seriously wounded, and was released only after the payment of a bribe. His
mother was detained for
three months. As a result, the applicant’s parents
could no longer afford to pay his tuition fees in Australia.
- The
applicant claimed that he could not return to China as “local police would
arrest [him] because they thought [he was] a
traitor”, and he did not want
to live in fear.
The Delegate
- The
application was considered by a delegate of the respondent Minister. Ultimately
the delegate was not satisfied that the applicant
was a genuine Catholic, that
he attended church on a regular basis, or that his parents had been arrested and
detained. The delegate
found that the applicant would not be of interest to the
authorities if he were to return to China (CB 84). Further, the delegate
considered that if the applicant did practise as a Catholic on return he would
be able to do so in his home province without fear
of persecution (CB 84).
- As
a result, the delegate found that the applicant did not have a genuine fear of
harm, that his fear of harm was not well-founded,
and was not satisfied that
Australia had protection obligations towards the applicant (CB 85).
The Tribunal
- The
applicant applied for review to the Tribunal on 9 September 2010 (CB 87). He
continued to receive assistance from a migration
agent (Ms Weiming Qian) (CB
88). The applicant was invited to and did attend a hearing before the Tribunal
on 17 November 2010 (CB
95, CB 102).
- While
the Tribunal accepted that the applicant had some knowledge of Catholicism, it
did not accept that religion was an important
part of the applicant’s life
([145] at CB 134). In essence, the Tribunal found that the balance of material
claims made by
the applicant lacked credibility ([146] at CB 135). It noted
significant inconsistencies in his evidence as between the statement
annexed to
his protection visa application, in his interview with the delegate, and before
the Tribunal ([147] at CB 135 to [160]
at CB 137).
- The
Tribunal found that the applicant did not have a need or desire to attend church
in either Australia or China, and he would not attend underground
churches if he were to return to China ([160] to [161] at CB 137). It concluded
that the applicant would not be
at risk in China as a result of religious
practice ([161] at CB 137).
- The
Tribunal also noted the applicant’s delay in claiming protection.
It
did not accept the applicant’s explanation that he was not aware that he
could claim protection until he had been detained
([162] at CB 137). Further,
the Tribunal did not accept the applicant’s claim that he would be seen as
a “traitor”
if he were to return to China ([165] to [167] at
CB 138), a claim that the Tribunal noted was not repeated before it ([166]
at CB
138).
- In
light of these factual findings, the Tribunal was not satisfied that the
applicant had a well-founded fear of persecution for a
Convention reason ([171]
at CB 139). It therefore affirmed the delegate’s decision not to grant the
applicant a protection
visa ([173] at CB 139).
Application to the Court
- The
application before the Court is in the following bare terms:
- “1. I
was baptised in China while I was young. I attended church service in
Australia.
- 2. At RRT
interview, I answered most questions correctly. But RRT did not believe
me.
- 3. I fear
to go back to China. RRT low access my risk to go back to
China.”
- I
note that at the first Court date in this matter the applicant was provided with
the opportunity to access the Court’s “Refugee
Review Tribunal Legal
Advice Scheme”. I take note that the applicant did in fact participate in
that scheme, and was given
advice by a solicitor on the panel of that scheme.
Despite the opportunity, therefore, that was provided to the applicant, both
through
the provision of legal advice and as embodied in orders made at the
first Court date, no amended application, nor indeed any material
in support of
his application, has been filed in this Court.
Before the Court
- Today
the applicant appeared in person. He was assisted by an interpreter in the
Mandarin language. Ms A Mitchelmore of counsel appeared
for the first
respondent. In addition, I note the Court Book was taken into evidence in this
matter. The Court was assisted by written
submissions filed on behalf of the
Minister and, of course, Ms Mitchelmore’s oral submissions to the
Court today.
- The
applicant, in essence, raised three matters, and in response a fourth matter, in
his submissions to the Court today.
- The
first was to allege that at the Tribunal hearing he was not given sufficient
time, as he said, “... to think things over”,
in particular when the
Tribunal questioned him about his parents. This was “unpleasant” for
him, it brought back “unpleasant”
memories. The applicant complained
that the Tribunal’s conduct and its questioning at the hearing resulted in
unfairness to
him.
- The
second complaint raised today also relates to a complaint about the hearing. The
applicant stated that the hearing lasted for
six or seven hours, that he was
“bombarded” with questions without stop, and that he became quite
distressed. He put
this forward as the explanation as to why there were “a
few errors and misuse of words” in what he told the Tribunal.
He said he
found it hard to express his feelings.
- The
third complaint was to take issue with the Tribunal’s finding that it was
unlikely that the applicant would be persecuted
if he were to return to China.
In essence, I understood the applicant to challenge the Tribunal’s
conclusion, and therefore
the factual findings that led to that conclusion.
- A
fourth matter arose after Ms Mitchelmore’s submissions. This was that the
Minister had not provided concrete evidence that
the applicant would not be
persecuted in China.
Consideration
- Dealing
first with the grounds as put before the Court. The three grounds of the
application to the Court, whether looked at individually,
or even taken
together, do not raise or identify any legal error on the part of the Tribunal.
As Ms Mitchelmore has submitted, at
their highest the claims raised amount to an
attempt by the applicant to re-agitate the claims made before the delegate, and
then
the Tribunal. Simply, the applicant is seeking for this Court to engage in
impermissible merits review (Minister for Immigration & Ethnic Affairs v
Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481
(“Wu Shan Liang”)).
- I
say this for the applicant’s benefit, and indeed, relate it to what I told
the applicant earlier today during the course of
the hearing, that the
assessment of an applicant’s claims to protection and the weight to be
given to an applicant’s
evidence, is a matter for the Tribunal exclusively
(Wu Shan Liang, Minister for Aboriginal Affairs v
Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per
Mason J).
- Importantly,
again emphasising what I said earlier to the applicant, specifically in relation
to ground two, it is the case that the
Tribunal does not have to believe, or
uncritically accept, what an applicant puts to it. As I emphasised, and I do so
again for the
applicant’s benefit today, the assessment of an
applicant’s claim is a matter entirely for the Tribunal. It is the case
that findings of fact, which include findings on credibility as made by the
Tribunal, are within the proper exercise of a Tribunal’s
jurisdiction
where those findings are reasonably open to the Tribunal on what is before it
and, as also in this case, where it gave
cogent reasons (Re Minister for
Immigration & Multicultural & Indigenous Affairs; Ex parte
Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
- The
applicant’s three grounds either seek merits review, or are assertions of
challenges to the Tribunal’s factual findings.
Factual findings which, I
must say, having considered the Tribunal’s decision record, were findings
that were open to the Tribunal
to make on what was before it, and for which it
gave comprehensive reasons.
- As
Ms Mitchelmore correctly, in my view, submitted, the applicant’s first two
complaints before the Court today in essence amount
to an allegation that the
Tribunal’s conduct of the hearing before it was unfair.
- As
I tried to explain to the applicant earlier, these complaints cannot assist him
today in revealing legal error on the part of the
Tribunal, to a large extent
because he has brought no evidence to support the claims that he has made in
this regard. The claims,
unsupported as they are, must be viewed and considered
in light of the only relevant evidence before the Court. That is the
Tribunal’s
own account as set out in its decision record. In the absence
of evidence to the contrary, it is not open to this Court to draw inferences
as
to what may otherwise have happened at the hearing (NAOA v Minister for
Immigration & Multicultural & Indigenous Affairs [2004] FCAFC
241).
- The
Tribunal’s account reveals that the applicant was given ample opportunity
to explain his claims to protection, and was put
on notice by the Tribunal of
its concerns with what he had said and what he had put in writing earlier. He
was given the opportunity
to comment.
- The
Tribunal clearly understood what is sometimes not well understood by Tribunal
members, that is the difference between an “issue”
and
“information”. It appears to have been very careful in dealing with
matters of “issue” (s.425 of the Act) (SZBEL v Minister for
Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006)
228 CLR 152; (2006) 231 ALR 592), and separately dealing with matters of
“information” and its relevant obligations in that regard pursuant
to s.424A of the Act.
- I
note specifically the Tribunal’s use of the facility available to it
through s.424AA in discharging whatever obligation arose in relation to s.424A
(SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46).
Again, I can only agree with submissions made for the Minister today that the
Tribunal made it clear to the applicant that he could
have further time to
consider his responses to matters put to him by the Tribunal.
- He
responded on all bar one matter to the Tribunal. In relation to this one
outstanding issue, the Tribunal wrote to the applicant
following the hearing (CB
109 to CB 110). Indeed, the applicant responded (CB 111).
- There
is nothing before the Court, therefore, to support the applicant’s claims
today that the Tribunal’s conduct of the
hearing was unfair. Indeed, as
was put to me earlier today, the Tribunal specifically took into account that
the applicant may have
been nervous or upset, but nonetheless, for the reasons
that it gave, was not able to find that the applicant was a credible
witness.
- In
particular, the applicant also complained about the length of the hearing before
the Tribunal and a hearing conducted without breaks.
The applicant also claims
he was bombarded with questions during the course of a lengthy and uninterrupted
hearing. I take this to
mean that there was an unceasing flow of questions to
him which did not allow for him to respond in any meaningful way.
- As
to the length of the hearing and its being conducted without break, that
allegation is contradicted by the Tribunal’s own
record of the hearing, as
set out at CB 103. A record not challenged by any evidence to the contrary by
the applicant. This was a
hearing that perhaps was at the lengthier end of the
“scale” (some five hours in total). But I note in particular that
there were at least two breaks in the hearing. The first break of some 20
minutes, and the second break of about a half an hour.
- That
the Tribunal conducted a lengthy hearing, in itself, does not reveal any
unfairness, and therefore any legal error. Indeed, if
hearings are too brief,
and matters that need to be covered are not covered, Tribunals may well find
themselves being challenged.
For example, for not having exposed relevant,
critical issues determinative of the review to the applicant.
- Again,
having regard to the only record of what occurred at the hearing, the
Tribunal’s own decision record, in my view the
hearing, although lengthy
and involving a series of questions, was appropriate given the range of factors
that the Tribunal felt
were relevant and needed to be dealt with. As I said,
there can be no error in the Tribunal comprehensively dealing with what it
saw
as being it’s legal obligations in conducting a fair hearing.
- The
third complaint was essentially a challenge to the merits of the
Tribunal’s findings. In particular, I note in that regard,
first, the
applicant’s challenge to the Tribunal’s finding that there was
“not a well-founded fear”, and
the level of likelihood of
persecution if he were to return to China. As Ms Mitchelmore correctly
submitted, this is not a matter
on which this Court can intervene and impose, or
substitute, its own finding. This was a challenge to the Tribunal’s
factual
findings, and its ultimate conclusion based on those findings, amounting
to impermissible merits review (Wu Shan Liang). That cannot assist the
applicant today.
- The
applicant also said today that the Tribunal dismissed the issue of
“persecution” in one sentence. I assume that that
sentence is the
concluding sentence, or derives from the conclusion of the Tribunal at the end
of its decision record (see CB 139).
- Ms
Mitchelmore, in my view generously, submitted that this was not a correct
characterisation of the Tribunal’s decision, and
I say generous because it
is abundantly clear on any plain reading of the Tribunal’s decision record
that the applicant’s
claims were comprehensively considered by the
Tribunal. It is plainly wrong in light of this decision record to say that the
Tribunal
dealt with the applicant’s claims in one, almost throwaway, line.
The Tribunal did not take one sentence to reject his claims.
The
Tribunal’s reasoning, as I have repeatedly said, was comprehensive. It
dealt with all aspects of the applicant’s
claims, all the integers of his
claims. It made findings of fact which were open to it on what was before it,
and it gave comprehensive
reasons. The fact that the applicant did not like the
outcome does not reveal legal error on the part of the Tribunal.
- Last,
the applicant complains that no concrete evidence was provided that he would not
be persecuted in China. As I sought to explain
to the applicant during the
course of the hearing, the law does not require the Tribunal and, relevantly,
given what the applicant
told the Court today, the Minister’s
representative, to “prove” that he would not be persecuted if he
were to return
to China. That is not the legal test that is required by the
Tribunal, nor the argument that Ms Mitchelmore is required to advance
on behalf
of the Minister today.
- The
test that is required is set out very clearly in the Act. It has been the
subject of consideration by the Federal Court and the
High Court of Australia.
In simple terms, for the applicant’s benefit, the test that the Tribunal
was required to apply, and
the test that the Minister’s legal
representatives need to support before the Court today, is as follows.
A
successful application for a protection visa requires the relevant decision
maker, in this case the Tribunal, to be satisfied that,
in effect, the applicant
meets the definition of “refugee” that is set out in the
UN Refugees Convention.
- The
level of satisfaction is not something that encompasses this idea of absolute
proof which the applicant has alluded to today.
It is ultimately a judgment that
must be made by the relevant Tribunal member. While that judgment must be based
on findings of fact
that are based on probative material that is put before it,
ultimately it is for the Tribunal to look at all that material, to hear
what the
applicant has said, to make findings of fact on that, and then either be
satisfied or not satisfied (s.65 and s.36 of the Act. See also SJSB v
Minister for Immigration & Multicultural & Indigenous Affairs [2004]
FCAFC 225 and Abebe v The Commonwealth [1999] HCA 14; (1999) 197
CLR 510; (1999) 162 ALR 1; (1999) 73 ALJR 584 at [187]).
- In
all, arising from what the applicant has put to the Court, I cannot see
jurisdictional error in what the Tribunal has done.
Conclusion
- For
the applicant to succeed before the Court, jurisdictional error would need to be
found. In the absence of any jurisdictional error,
I am going to make an order
that the application to the Court be dismissed.
I certify that
the preceding 44Error! Style not defined.!Syntax
Error, !Error! Style not defined.Error! Style not defined.!Syntax
Error, !forty-fourforty-four (44) paragraphs are a true copy of the reasons
for judgment of Nicholls FM
Date: 15 November 2011
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