FEDERAL COURT OF AUSTRALIA

SZNYI v Minister for Immigration and Citizenship [2010] FCA 221

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $2,200.00

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from a decision of the Federal Magistrates Court of Australia delivered on 25 November 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 24 August 2009. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.

background

2                     The appellant is a citizen of China who arrived in Australia on 5 April 2008. On 26 March 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the Minister refused the application for a protection visa on 28 April 2009.  On 26 May 2009 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, the appellant claimed to fear harm from the authorities in China because of his membership of an underground Roman Catholic Church (the Church). He said his family had been “devoted” Catholics for generations and that he had been raised as a Catholic although not baptised. He said his parents had been imprisoned and mistreated for holding a gathering of the Church.  He said that, subsequently, he was interrogated and threatened by Public Security Bureau officers (PSB) at his school because his parents were known to the authorities as members of the Church.  He said that he was forced to leave school.  He said that, for the following year, his family lived in fear and panic.  He said that during this time his parents continued to practise their religious beliefs and that he was sent to live with a cousin to avoid danger as a result of his parents’ activities.  He said that money was raised by “church brothers and sisters” to allow him to escape from China and to travel to Australia.  The appellant also stated in an interview before a delegate of the Department that he had attended Church “one or two times” since arriving in Australia.

the tribunal’s decision

4                     At a hearing before the Tribunal on 30 July 2009, the appellant was taken through the statement he had made in support of his application for a protection visa and was asked questions on it, including basic questions about Christianity and Roman Catholicism. 

5                     The Tribunal found that the appellant was unable to answer many questions satisfactorily.  The Tribunal found that the appellant’s significant lack of understanding (in some respects, his fundamental misunderstanding) about Christianity and Roman Catholicism indicated that he was not a Roman Catholic and that he had not been brought up in a Roman Catholic family.

6                     The Tribunal noted the fact that the appellant was not baptised and had not sought to be baptised in Australia.  Indeed, the appellant said that he did not know the significance of baptism. The Tribunal considered that if the appellant’s parents and grandparents were the devoted Roman Catholics he claims them to have been, arrangements would have been made to baptise the appellant as a child.

7                     The appellant claimed that his parents were detained in 2005 for their religious activities.  He claimed that if he were to return to China the PSB would check his passport and become aware of his connection to his parents.  However, the appellant was unable to explain why this would be the case if he had been able to leave China legally on a passport issued under his own name in 2008.

8                     Based on these and other concerns, the Tribunal found that the appellant had fabricated his claims in order to support his application for a protection visa.  The Tribunal did not accept that the appellant or his parents are or were members of an underground Roman Catholic Church in China.  The Tribunal found that the appellant would not be perceived as a Roman Catholic on his return to China.  It also considered that he would not be implicated to be a Roman Catholic because of any actions or beliefs of his parents or other relatives.  It found that the Chinese authorities would have no interest in the appellant or his parents for the reasons that the appellant claimed.  

9                     The Tribunal went on to consider the appellant’s position if the Chinese authorities were to become aware that he had applied for refugee status in Australia.  The Tribunal considered that the authorities would view this as the appellant’s attempt to obtain an economic advantage by staying in Australia, rather than as an act of political or other disloyalty to China.  The Tribunal did not accept that, should the appellant return to China, he or his family would be persecuted on the basis of him being an unsuccessful asylum seeker.

10                  The Tribunal noted that the appellant had attended church services once or twice in Australia.  However it was not satisfied that he had engaged in religious activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee.  The Tribunal therefore disregarded this conduct in Australia, relying on s 91R(3) of the Migration Act 1958 (Cth) (the Act). 

11                  In the end result the Tribunal was not satisfied that the appellant had suffered any Convention-related harm, or that there was a real chance of such harm occurring to him in the reasonably foreseeable future should he return to China. The Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention-related reason.  It therefore concluded that the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention, and affirmed the decision under review.

federal magistrates court

12                  By application filed in the Federal Magistrates Court on 24 September 2009 the appellant sought judicial review of the Tribunal’s decision.  Relevantly, the grounds of the application were stated as follows:

1.    RRT failed to comply its obligation pursuant to s.424A of the Act.  (Particulars for all 3 points are attached)

2.    RRT dealt with corroborative evidence in a manner that contravened s.425 of the Act.

3.    RRT’s decision is affected by judicial errors due to its failure in properly assessing the applicant’s claims.

[Errors in original]

The grounds were supported by particulars, expressed as follows:

1.    RRT clearly failed to comply with its obligations under s 424 A of the migration act by writing to the applicant to invite him to comment to information used to reject his claim.

For example, in the reasoning in paragraph 119, “based on the independent information available”, RRT failed to outline to the applicant why the information is relevant and gave the applicant to comment in writing, thereby failing to give the applicant natural justice and procedural fairness.

2.    RRT failed to properly assess the applicant claims, particularly whether the applicant can be assessed under the “special social group” or at least it failed to clearly or explicitly indicate or explain in its finding or reasoning that it had done do before rejecting the applicant’s claims.

Actually, RRT member single-mindedly focused on assessing the applicant claim on “catholic” ground (religious ground) and the whole session became a “test” of in-depth catholic knowledge test. While on numerous occasions, the applicant has indicated to RRT that he is worried of persecution (showed in his school experience) particularly because of his parents. RRT member simply failed to assess this respect in a proper way (although it can still reject it finally but the reasoning of the finding was non-existent in the decision itself)., i.e “special social group” under the Convention reason. It says it “also” considered it para.118 but the reasoning process was simply not there.

3.    In connection with the above point, RRT has judicious error in failing to exercise its power in making necessary further inquiry about the key (actually the only) corroborative evidence in the hearing. The High Court has now made it clear that the Tribunal could have obtained this evidence without imperilling itself; SZKTI supra. If the other side had answered and satisfied the Tribunal of its bona fides, the Tribunal would have had to consider the evidence.

On the other hand, while RRT indicates it may be fraudulent nature whatsoever, it should have asked itself the right question or at least be “open-minded” to think that if the document was fabricated, the document itself may easily stated the applicant is “baptised” or things to that effect rather than a modest, “sounds-more-reasonable” way. Despite the applicant’s repeated proposal for RRT to make inquiry as needed, in particular, in the context that this is a case that generally the applicant overall credibility is not “highlighted” as a issue (he confirms he is not baptised as stated in the evidence) and the his parents circumstances can be very critical in the case, RRT only handled this request in a perfunctory and very subjective way, thereby failing to give the applicant proper procedure fairness and natural justice.

4.    In para.108, RRT’s reasoning and finding that the “fundamental misunderstanding” by “his father” led to RRT’s belief that the applicant’s father is “not a Catholic”.  This is another typical example of close-mindedness and lack of procedure fairness as it could well be the father have told something to the son (the applicant) correctly, the son being young kid at that stage who simply misunderstood/or wrongly recall what his father had “correctly” told him. Such a way of inference is just very unfair and biased, particularly when the applicant’s father’s circumstance is highly critical in this case.

5.       RRT decision is also affected by proper compliance of s 91 R(3) of the Act.

[Errors in original]

13                   The Federal Magistrates Court rejected each of the grounds of the application.  Specifically, the Federal Magistrates Court considered that there was no breach of s 424A or s 425 of the Act. The Federal Magistrates Court concluded that there was nothing to support the allegation of bias.  It found further that the Tribunal’s approach to the application of s 91R(3) of the Act was an orthodox one.  As the appellant was unrepresented, the Federal Magistrates Court turned to consider whether there may be any issue of jurisdictional error apart from those raised in the application.  No error was found.  Accordingly the Federal Magistrates Court dismissed the application, with costs.

appeal to this court

14                  The appellant appealed to this court on 15 December 2009.  The notice of appeal is poorly drafted.  In terms, it advances the following as grounds of appeal:

1.        The Federal Magistrate Court erred by failing to find that RRT was in breach of S424 & 91R(3) of Migration Act,

2.        The Federal Magistrate Court erred to find that RRT was in breach of s 425 of Migration Act.

3.    The Federal Magistrate Court erred to find that the applicant was denied natural justice by not looking into critical evidence in relation to a letter provided by an underground church.

            [Errors in original]

15                  It would seem that the reference to s 424 in the first ground of appeal should be a reference to s 424A of the Act.  To so read the first ground of appeal would align that ground with the first ground of the application that was before the Federal Magistrates Court which pleaded a failure to comply with s 424A of the Act. 

16                  The second ground of appeal proceeds as if the Federal Magistrates Court had found that the Tribunal was in breach of s 425 of the Act, whereas the Federal Magistrates Court had found no such breach.  It seems that the intention of the appellant was to plead that the Federal Magistrates Court erred in failing to find a breach of s 425.

17                  The third ground of appeal proceeds as if the Federal Magistrates Court had found that the appellant was denied natural justice.  There was no such finding.  It seems that the intention of the appellant was to plead that the Federal Magistrates Court erred in failing to find that the appellant was denied natural justice.  I should add that no claim of a denial of natural justice was made in the Federal Magistrates Court independently of the claims that s 424A and s 425 of the Act had been breached.

18                  The appellant was unrepresented at the hearing of the appeal.  He was, however, assisted by an interpreter.  I raised with the appellant the difficulties with the drafting of the notice of appeal to which I have referred.  He confirmed that ground 1 of the notice of appeal should refer to s 424A of the Act and not s 424.  He also confirmed that ground 2 should be read as alleging a failure to find a breach of s 425 and that ground 3 should be read as alleging a failure to find a denial of natural justice.  The Minister was prepared to treat the notice of appeal as if it was read in this amended way. 

19                  The appellant had filed no written submissions and advanced no substantive argument in support of his grounds of appeal.  He did say that it was a fact that he was brought up in a Catholic family.  The Minister filed written submissions and made oral submissions at the hearing of the appeal. 

consideration

20                  In order to understand aspects of the appellant’s application for judicial review it is necessary to say something about some of the material that had been placed before the Minister’s delegate by the appellant. 

21                  The appellant placed before the delegate a copy of a document dated 13 April 2009 said to have been from the Catholic Fuzhou Archdiocese.  The document was provided by facsimile transmission from the appellant’s migration agent.  It was accompanied by a letter dated 22 April 2009 from the agent referring to the document as a “certificate”.  An English translation was provided by the same transmission. The certificate itself was said to have been “faxed from China”.  The Tribunal noted that the Mandarin version of the document was on a letterhead that was in English and gave full contact details including an address, telephone number and facsimile number.  The Tribunal found it to be strange that full contact details would be given on letterhead if the document really was from an underground, illegal church.  The Tribunal raised this matter with the appellant who said that he did not know how the document had been obtained.  The appellant told the Tribunal that his family wanted to help him and had gone to get the letter from the “head church”.  The document stated:

[The appellant] is indeed a admirer of the faith without baptism in this Diocese.  His parents and grandparents have been enthusiastic church members for generations.  Due to other reasons, he himself has not been baptized.  We kindly plead that your country would try your best to look after him.

22                  The Tribunal noted that it had before it independent evidence to suggest that many types of documents, such as the one before it, could be fraudulently and easily obtained in China.  It reasoned that the document could have been prepared by anyone and that ringing the telephone number shown on the document would not have satisfied it that it was probative evidence in support of the appellant’s claims.  In particular the Tribunal noted that it would not know to whom it was speaking in any such telephone conversation and that a telephone call would not overcome the problems the Tribunal had identified with the appellant’s credibility.  In the end result, the Tribunal said that it placed no weight on the document. 

23                  The first ground of appeal, read as I have indicated, reflects in part the substance of the first ground of the application before the Federal Magistrates Court, namely an alleged failure on the part of the Tribunal to comply with s 424A of the Act.

24                  Section 424A of the Act obliges the Tribunal to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  In performing that obligation, the Tribunal is to ensure, as far as it is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review.  The Tribunal is also obliged to invite the applicant to comment on or to respond to the information.  However, s 424A does not apply to information that is not specifically about the applicant: s 424A(3)(a); Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.

25                  Paragraph 1 of the particulars that had been provided in the application before the Federal Magistrates Court shows that this ground of appeal relates specifically to the findings in [119] of the Tribunal’s decision record.  Those findings were as follows:

As already noted the Tribunal does not accept that the applicant or his parents are members of an underground Catholic Church.  If the authorities were to become aware that the applicant had applied for refugee status in Australia, based on the independent information available, the Tribunal considers that the authorities would view this as his attempt to obtain an economic advantage by staying in Australia, rather than an act of political or other disloyalty to China.  The Tribunal does not accept that the applicant or his family would be persecuted on the basis of him returning to China as an unsuccessful asylum seeker.

[Emphasis added]

26                  In the hearing before the Federal Magistrates Court the appellant contended that the Tribunal failed to outline to the appellant why the “independent information available” was relevant and failed to give the appellant an opportunity to comment in writing on that matter.

27                  The independent information before the Tribunal concerned two main topics: the position of Catholics in China, and the procurement and use of fraudulent documentation in China.  This information plainly fell within s 424A(3)(a) of the Act, with the consequence that s 424A(1) of the Act did not apply to it.  It follows that the Federal Magistrates Court was correct to reject this ground of the application. 

28                  The first ground of appeal also relies on an alleged failure to find that the Tribunal breached s 91R(3) of the Act.  This matter was raised by paragraph 5 of the particulars that had been provided in the Federal Magistrates Court.  Section 91R(3) provides, relevantly, that conduct engaged in by a person is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 

29                  At the hearing before the Federal Magistrates Court, the appellant’s complaint in this regard was not particularised beyond what may be taken to be a bare assertion that s 91R(3) was not properly applied by the Tribunal.  The reason why it was said that s 91R(3) was not properly applied, was not articulated. 

30                  The only matter apparent on the face of the Tribunal’s decision record to which s  91R(3) of the Act could relate was the finding in [120] concerning the appellant’s church attendance in Australia:

The Tribunal accepts that, at some point, the applicant has attended church services once or twice in Australia.  However, bearing in mind the problems that the Tribunal has set out above in regard to the applicant’s evidence, the Tribunal is not satisfied that he has engaged in religious activities in Australia, otherwise than for the purpose of strengthening his claim to be a refugee, and disregards his conduct in Australia in this regard under s. 91R(3) of the Act.

31                  In my view this was a finding of fact to which the Tribunal was entitled to come.  It was a finding that the Tribunal made “bearing in mind the problems that the Tribunal had set out above in regard to the applicant’s evidence”.  Based on the same concerns, the Tribunal had found that the appellant had fabricated his claims in order to support his application for a protection visa. 

32                  Thus, in circumstances where it had already rejected the appellant as a witness of truth and had found (amongst other things) that neither the appellant nor his parents were members of an underground church, the Tribunal was not satisfied that the appellant’s attendance at church services once or twice in Australia was an activity that had been engaged in otherwise than for the purpose of strengthening the appellant’s claim to be a refugee.

33                  The Federal Magistrates Court correctly rejected this ground of the application.  In so doing it noted that there was nothing in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 which cast any doubt upon the validity of the Tribunal’s approach.  In my view that observation was correct in light of the particular circumstances of this matter.

34                  Accordingly, the first ground of appeal fails.

35                  The second ground of appeal, read as I have indicated, appears to reflect the substance of the second ground of the application before the Federal Magistrates Court, namely an alleged failure on the part of the Tribunal to comply with s 425 of the Act.  In the proceedings before the Federal Magistrates Court this ground was advanced specifically by reference to what was claimed to be “corroborative” evidence.  In light of paragraph 3 of the particulars relied upon by the appellant, the complaint was that the Tribunal breached s 425 of the Act by failing to make further enquires (presumably from third parties) about the document purportedly from the Catholic Fuzhou Archdiocese, with a view to establishing its authenticity.

36                  It is not apparent how, in the present circumstances, the Tribunal’s refusal to make such enquiries translates into a failure by the Tribunal to invite the appellant to appear before it to give evidence and to present arguments “relating to the issues arising in relation to the decision under review”, and hence a breach of s 425.  The Tribunal’s decision record shows that the Tribunal raised its concerns about the authenticity of this document on two occasions during the Tribunal hearing on 30 July 2009 and told the appellant that, in light of those concerns, it could decide to place no weight on the document. 

37                  Although proceedings before the Tribunal have an inquisitorial (as opposed to adversarial) character, no general duty is imposed on the Tribunal to undertake its own enquiries in addition to information provided to it by an applicant and otherwise under the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [1].  The Tribunal’s statutory function was to “review” the decision before it.  Neither s 425 nor any other provision of Division 4 of Part 7 of the Act obliges the Tribunal to embark on a fact-finding mission.  Indeed, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness, it is not required to obtain such evidence. 

38                  In SZIAI at [25] the plurality in the High Court observed:

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.  It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. 

[Reference to footnote omitted]

39                  However, their Honours went on to observe that, by reason of the particular facts and circumstances of the case before it, it was not necessary to explore those questions of principle.

40                  In the present case, the Tribunal reasoned that it would be futile to ring the telephone number in China shown on the document, as suggested by the appellant, because it would not have been satisfied by an enquiry of that kind that the document was probative evidence in support of the appellant’s claims.  This was because, having been satisfied that the document could easily have been fabricated (based on the contents of the document and the independent evidence before it concerning the procurement of fraudulent documents in China), a telephone conversation with a person answering the given telephone number would not have alleviated those concerns, given that the Tribunal would not know to whom it was speaking.  In my view that approach was, in the given circumstances, rational and reasonable.  As was the case in SZIAI, there is no factual basis for the conclusion that this failure to enquire was tantamount to a failure by the Tribunal to undertake its statutory duty to review the delegate’s decision or, otherwise, was so unreasonable as to support a finding of jurisdictional error.  The Federal Magistrates Court was correct to reject this ground of the application.  It follows that the second ground of appeal fails.

41                  The third ground of appeal, read as I have indicated, raises, in substance, the same alleged error as the second ground of appeal, namely the failure to “look into critical evidence”, being the purported letter from the Catholic Fuzhou Archdiocese.  For the reasons given above, there was, in the circumstances, no denial of natural justice as required under Division 4 of Part 7 of the Act.  It follows that the third ground of appeal fails.

42                  I would also add, for the sake of completeness, that paragraphs 2 and 4 of the particulars filed in support of the grounds in the application before the Federal Magistrates Court do not seem to engage any of the grounds raised in the notice of appeal in this court.  In the event that I am wrong in that conclusion, I should say something about the matters which are thereby raised.

43                  Paragraph 2 of the particulars raised a complaint that the Tribunal only considered the appellant’s application on the basis of a well-founded fear of being persecuted for reasons of religion and not for reasons of membership of a particular social group.  This complaint, however, is misconceived.  The Tribunal considered the appellant’s claim to fear harm as a Catholic and because of his membership of an underground Roman Catholic Church.  The Tribunal also considered the appellant’s claims that he was a member of a family that had been devoted Catholics for generations and that he had been raised as a Catholic.  However, for the reasons which it gave, the Tribunal did not accept that the appellant or his parents were Roman Catholics, that the appellant had been brought up in a Roman Catholic family or that the appellant or his parents  were members of an underground church in China.  It also found that the appellant would not be implicated to be a Catholic because of any actions or beliefs of his parents or other relatives. The Tribunal thus rejected the entire factual basis of the appellant’s claim to have a well-founded fear of persecution for a Convention-related reason, whether that reason be characterised as being on grounds of religion or membership of a particular social group.  The Federal Magistrates Court correctly rejected that ground of the application. 

44                  Paragraph 4 of the particulars effectively invited a review of the facts on the merits and contained an allegation of bias on the part of the Tribunal because of the findings of fact that it had made.  The Federal Magistrates Court correctly resisted any invitation to engage in merits review and correctly rejected the allegation of bias on the part of the Tribunal.

disposition

45                  No error has been shown in the dismissal by the Federal Magistrates Court of the appellant’s application for judicial review.  It follows that this appeal should be dismissed, with costs. 

46                  As to the quantum of costs, the Minister relies on the affidavit of Bernadette Marie Rayment sworn 22 February 2010 in which the sum of $2,200.00 is claimed.  This sum is less than the amount recoverable in accordance with Item 43H of Schedule 2 of the Federal Court Rules.  I am satisfied on the evidence that the claimed sum is a fair estimate of party-party costs for the professional work to which it relates.  The appellant should pay the Minister’s costs fixed pursuant to O 62 r 40C(4) in the sum of $2,200.00. 

Associate:

Dated:         15 March 2010