FEDERAL COURT OF AUSTRALIA

SZJKS v Minister for Immigration and Citizenship

[2008] FCA 335

SZJKS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2238 OF 2007

RARES J

3 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.                                    The appeal is dismissed.

2.                                    The appellant pay the costs of the first respondent, fixed in the sum of $1,500.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an appeal from a decision of the Federal Magistrates Court, SZJKS v Minister for Immigration [2007] FMCA 1687, rejecting the appellant’s claim for constitutional relief in respect of the decision of the Refugee Review Tribunal to affirm the decision of a delegate of the Minister not to grant the appellant a protection visa.

2                     The appellant arrived in Australia in January 2006 from the People's Republic of China.  He claimed that he was born in 1976 into a family in a coal mining area of China and that his father worked as a miner in a coal mine.  A number of disasters occurred in coal mines in the area, including one in which his father was killed.  Some of his relatives and friends were also killed in various other coal mining accidents.  The appellant claimed that these events had traumatised him mentally and psychologically.  He claimed to have studied coal mine technology and that he worked at the local coal mine bureau.  He claimed that he resigned from his work in January 2002 because he could not tolerate the continuing dangerous environment in the mine and was suffering from serious depression.  He claimed that as a result of his health problems, his whole family moved locations to another town in China to assist him to start a new life.

3                     The appellant claimed that in March 2002 a friend of his father assisted him to start working in a colour printing factory.  He claimed that his father’s friend was a Christian and, mindful of his suffering, the friend arranged for him to attend religious gatherings at persons’ various homes.  He claimed that his religious experiences were of spiritual benefit to him and that by January 2003 he had been baptized.  He claimed that he attended an unofficial church in the town in which he had come to live.  He also claimed that the members of his church did not participate in the official Three‑Self’s Patriotic Church, principally because they did not think there was any genuine religious freedom in that Church.  He claimed there were about 60 members of the group in which he was worshipping and that that was divided into three subgroups, being a youth group, women’s group and liaison group.  He claimed he was in the youth group and that their meetings were often interrupted because of persecution by Government authorities, such as the Public Security Bureau.

4                     He claimed that in January 2004 he had been instructed by his father’s friend to spread the gospels in the coal mining area in which his father had worked and died.  He claimed that he followed those instructions and in the ensuing two years he assisted his church in establishing three small bible study groups in the area of the coal mine.  The appellant claimed that by late 2005 the Chinese government authorities had become alert to the unofficial religious group of which he claimed to be a member, and the members of that group, including his father’s friend and the leader of the youth group and himself had been subjected to investigation by the Public Security Bureau.  He claimed that he had been questioned by the police six or seven times from September 2005.  He also claimed that at Christmas 2005 he organised a Christmas party in a member of the group’s home in a small village near the coal mining area, and there had been an arrangement for a priest from Taiwan to lecture at that gathering.  He claimed that about 50 local miners and their families attended the party, but it was discovered by the Public Security Bureau and many police tried to arrest those gathered there.  He said he escaped, but his father’s friend, the leader of the youth group and many others were arrested.  After hiding for a short time he was able to make his way to Australia.  The appellant claimed that he subsequently learned that the leader of the youth group had confessed, with others, about his own involvement with the group and, therefore, he feared he would be persecuted were he to return to China.

5                     A delegate of the Minister identified the appellant’s claims, but did not accept them.  The delegate noted that a search of country information had been unable to find any mention of the particular fellowship, or any reports of arrests in the coal mining town area at Christmas 2005.  The delegate found that if the appellant were of interest to the authorities, he would not have been able to leave China without difficulty.  The delegate also found that the appellant originated from an area in China in which there was a very high proportion of Christians and in which the official religious policy had been applied liberally in that there were, in that area, many unregistered Christian churches. 

6                     The appellant applied for a review of the delegate’s decision to the tribunal.  He attended a hearing at which he gave evidence.  The appellant read to the tribunal reports from two local Chinese newspapers about leaders of unregistered churches having been arrested in China.  These reports, however, did not refer to any religious group or the area which provided any connection to the appellant in respect of his claimed activities other than the fact that they concerned unregistered churches.

7                     A number of troubling, indeed odd, questions appear in the tribunal’s own record of its taking of evidence from the appellant.  In particular the tribunal recorded that it had told the appellant:

‘It was looking for evidence of his having thought through the matter of why he had become committed to one church, rather than another.’

8                     Whatever one may think of this particular line of questioning, the Court cannot engage on a review of the merits of the tribunal’s decision‑making.  The Court’s function in an application of the present kind is to determine whether the tribunal acted within its jurisdictional confines and in accordance with law.  To examine whether or not it did so, the person who challenges the exercise of that jurisdiction must identify a jurisdictional error in the tribunal’s conduct of the review, or its decision.  And, of course, in an appeal from a decision of the Federal Magistrates Court, the task of the appellant is to identify a legal error the court below in its examination of what occurred before the tribunal. 

9                     The appellant argued five grounds of appeal before his Honour first.  They were that:

·               the tribunal did not assess his claims properly and fairly and was biased;

·               the tribunal failed to comply with s 424A of the Migration Act 1958 (but no particulars were given of that failure);

·               the tribunal ignored evidence;

·               the tribunal did not genuinely or honestly comply with its obligation under s 425 of the Act because the appellant was not permitted to present his oral evidence and support his application fairly and had not been able to present his argument (this ground appears to have been an elaboration of the bias complaint).

·               the tribunal failed to assess his application in accordance with the Act.

10                  His Honour examined each of these grounds.  He found on the material before him, which did not include a transcript or any other evidence apart from the tribunal’s own statement of its decision and reasons, there was no foundation for the claims that the tribunal approached the matter with a closed mind and did not conduct the review in good faith.  The trial judge held that the inquisitorial function of the tribunal under the Act was different to that which a court would have in exercising judicial power if dealing with the same issue.  His Honour pointed out that the tribunal was entitled to test and probe an applicant for review’s evidence, including the narrative of the history of the circumstances underlying his or her claim for a protection visa.  He observed that questioning of the kind undertaken in pursuing an inquisitorial function such as the tribunal has, might appear, if it were undertaken by a judge in open court, to give rise to an apprehension of a lack of impartiality.  But such questioning was open given the nature of the tribunal’s function to investigate a claim.

11                  As I have said, there are aspects of the record which the tribunal made of its own approach to its inquiry, which strike me as areas which may not be relevant, or appropriate but it is not the function of the court to descend into the merits of these matters.  Different people have different ways of investigating claims and ascertaining the existence or absence of a fact.  The mere fact that a court, looking at how an administrative tribunal went about that exercise, would not take the same approach in considering a question, does not mean that some error has been made in the way in which the administrative tribunal has exercised its function.  In my opinion, there was no error in the way in which his Honour dealt with the allegations of bias.

12                  The second ground argued before his Honour was of a breach of ss 424 and 424A of the Act.  His Honour summarised this ground as being based on the tribunal’s finding that it was not satisfied that the appellant’s claims were true, based on what the tribunal found to be the appellant’s confused and inconsistent responses at the hearing which, it said, lacked congruity.  The tribunal had also used the inconsistencies within the appellant’s evidence before it to arrive at its conclusion.  His Honour considered that this ground, as articulated before him, was in effect an attempt to undertake a review of the merits of the decision rather than to identify a jurisdictional error in the way in which the tribunal conducted the review.  I see no error in the way in which his Honour reasoned on this ground.

13                  The third ground was based on, among other things, a statement in the handbook produced by the United Nations High Commissioner for Refugees.  That appeared at [196], which noted a general principle that the burden of proof lay on the person submitting the claim, but that applicants for refugee status would often not be able to do anything other than to provide their own word in support of their claim.   One of the bases on which the tribunal rejected the appellant’s claims was the lack of evidence of the existence of the group of which he claimed to be a member.  That was a matter which previously had been used by the delegate to find against his claim.  The tribunal reasoned that the only basis on which the appellant’s claim was able to be assessed by it was to look at his own assertions and evidence because it had been unable to find any independent country or other information which named the group of which the appellant claimed to be a member, or reported any persecutory activities against underground churches in the areas in which he claimed to be active.  In other words, the tribunal’s reasoning pointed to the absence of any independent corroborative material which it would have expected to exist, were the group of which the appellant claimed membership, or independent churches in the areas in which he claimed to be active, the subject of attention by the Chinese authorities.

14                  In his articulate submissions to me today, the appellant has observed that in a country such as China, where the media can be repressed by the State, one may not expect always to see information about events in local media.  The appellant argued that the massacre of students in Tiananmen Square, in June 1989, was not a matter reported in the internal Chinese media, but was well-reported overseas.  He argued before me that, similarly, one might not always expect to see reporting within China of the repression of a religious group, such as that with which he claimed to be associated, particularly in local areas which were not the subject of international media attention.  While this may be a reasonable argument about the facts, it is not an argument which is open on this appeal.  It was the tribunal’s function to decide the facts.  It had to form a state of satisfaction as to whether it accepted the appellant’s claims or not.  It could only form that satisfaction on the evidence and material before it.  In an area in which different minds can take different views on conclusions to be drawn from exactly the same facts, it is not possible for me to discern a jurisdictional error in the way in which the tribunal reasoned on this point.  In essence, the tribunal was not satisfied by the appellant’s account of what happened, and because it was unable to find any corroborative or independent information supporting the existence of the religious group or repression which he claimed existed, it came to the conclusion that, overall, the appellant had not satisfied it of the factual foundation of his claim.  I am unable to see a jurisdictional error in the way in which the tribunal approached this matter or any error in his Honour’s consideration of it. 

15                  The fourth claim made before his Honour was of a breach of s 425 of the Act.  His Honour found, correctly in my view, that the appellant had been given an opportunity to give evidence and respond to the tribunal when he attended the hearing.  To the extent that this ground overlaps or expands upon the allegation of actual or apparent bias, it adds nothing further that requires separate consideration from that given to it by his Honour or by me in dealing with it above.  The ground has no substance.

16                  The last ground argued before his Honour was a general failure by the tribunal to assess the application in accordance with law.  That allegation is unparticularised and in effect is a summary of the appellant’s complaint.  It was correctly rejected by his Honour.

17                  In the notice of appeal to this court the appellant has asserted that his Honour erred:

·               in failing to correct an error of the tribunal which was based upon incorrect information;

·               in failing to find that the tribunal had made an unwarranted assumption or ignored an important piece of the appellant’s evidence in the consideration of his claims;

·               in not identifying that the tribunal had failed to comply with s 424 of the Act. 

18                  The appellant put his case clearly and articulately through an interpreter today.  He elaborated the first ground of appeal by arguing that the tribunal had made a wrong finding based on incorrect information about the situation in China in relation to the area of his claimed activities and that of his religious group.  He claimed that the newspaper articles that he had provided to the tribunal were general information and should not have been used as a basis for finding a failure by him to have identified information about the activities which he claimed existed in China.  He said that the information in the articles was relevant to the general situation in China but was misused by the tribunal in finding that it did not support his claim of particular persecution of both himself and the followers of the religious group with which he claimed to be associated.

19                  I am unable to see how the tribunal committed any jurisdictional error in the way in which it dealt with the evidence of the newspaper articles.  As the appellant said, they were general information tending to establish that religious persecution did occur in China.  But, the tribunal accepted that unregistered churches, their leaders and some of their members did face the risk of repression in China.  However, it pointed to the absence of any corroborative evidence, either in newspapers or other independent country information, to establish the existence of the appellant’s group or of any religious repression in the areas in which he claimed that had occurred.  Having pointed to that, it found that on the whole it was not satisfied with the appellant’s claim.  Whether another decision-maker would have taken the same view is not relevant.  There is no jurisdictional error in the tribunal approaching the matter in the way that it did. 

20                  The second ground of appeal was that the tribunal based its decision on an assumption.  The appellant referred to the fact that the tribunal had said that his evidence of what drew him to religion in the first place, being a reaction against corruption in the workplace in the coal mining area in which he had lived, struck it as being particularly hollow and unimpressive in the circumstances.  The tribunal referred to the appellant’s evidence at the hearing that he did not join the church until some time after he left the job where he had witnessed the corruption and moved to the second location.  It pointed out that he returned to the coal mining area after his conversion, not fearing for his safety yet consciously fleeing repression, which the tribunal said struck it as confused and inconsistent.  The appellant argued before me that the members of his church practiced in secret and so it was possible for the tribunal to find in his favour concerning this matter.  He said that the way in which the tribunal approached its reasoning identified that it had applied its own subjective assumptions as to the way in which a person in the appellant’s position should have reacted to the perceived fears which he claimed to have experienced.  The appellant argued that the tribunal had not, in effect, correctly assessed the facts of his case and come to a decision on them in his favour.

21                  The way in which the tribunal approached its findings as to its disbelief that the appellant was a Christian may be particularly hurtful and upsetting to a person who is, in fact, wrongly found not to have a faith which he or she claimed to have.  The findings may have gone further than were necessary for the tribunal to discharge its task, but nonetheless I am unable to discern a jurisdictional error in them.  As French, Lander and Besanko JJ said in SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 at [45]:

‘Whatever reservations might properly be held about the exploration of a person’s religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person’s claim to profess a particular religion is genuine.  Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country, will attract persecution on that ground.’

22                  Understandable as it is that a person in the appellant’s position, appearing unrepresented in a foreign court would take that view, as I have sought to emphasise, the court’s function is confined to the identification and correction of error in the exercise of the jurisdiction of the tribunal, not in its finding of facts.  The court must ensure that the appellant was provided with a fair procedure for the assessment and determination of his claim, not with what he would necessarily consider to be a fair outcome:  SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160 [25] per Gleeson CJ and Kirby, Hayne, Callinan and Heydon JJ.  I am unable to identify a jurisdictional error in the way in which the tribunal approached or determined the facts in this matter for the reasons that I have given, and therefore this ground also must be rejected. 

23                  Lastly, the appellant argued before me that the tribunal had failed to comply with s 424A of the Act, because of the way it dealt with the absence of evidence of the existence of the group and inconsistent evidence by him as to the mission he or the group was undertaking.  He argued before me that the tribunal was obliged to act as in movies he had seen.  These showed, he said, when a thief was caught the police were obliged to tell the thief what he was alleged to have done.  The appellant said that the tribunal had failed to tell him why it was not going to accept, in effect, the evidence which he had given and why it was inadequate.  In that way, he said that the tribunal failed to comply with s 424A(1) of the Act. 

24                  However, this argument is based on a misunderstanding of both s 424A and the requirements of the rules of procedural fairness.  First, the section requires the tribunal to give an applicant for review particulars of information which the tribunal considers would be the reason, or part of the reason for affirming the decision under review, except where it concerns information, among other things, that is general country information, or information given by the applicant for review for the purpose of the application:  see s 424A(3)(a) and (b).  So, when the tribunal sought to use the appellant’s evidence, and inconsistencies it said existed within it, together with country information of a general kind, it was not obliged under s 424A(1) to provide the appellant with any further notice about the use of that material.  The second reason why the appellant’s argument must be rejected was stated by the Court in SZBEL 228 CLR at 166 [48].  There the Court said that procedural fairness does not require the tribunal to give an applicant for review a running commentary upon what it thinks about the evidence that is given.  It follows that the third ground must fail. 

25                  For these reasons I am of opinion that the appeal must be dismissed.

26                  The Minister has asked for an order pursuant to O 62 r 4(2)(c) of the Federal Court Rules, fixing the costs in the amount of $1,500.  He relies on the affidavit of Bernadette Marie Rayment, sworn today.  Ms Rayment who argued the appeal and prepared detailed written submissions has deposed that the total costs incurred by the Minister in connection with the appeal are approximately $2,000, but he has sought only $1,500, representing a discount on the costs that the Minister might otherwise be entitled to recover on taxation.  Having regard to the matters in Ms Rayment’s affidavit I am satisfied that that is an appropriate sum to award.

Associate:

Dated:         13 March 2008