SZJYA v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The applicant is a citizen of the People's Republic of China. She arrived in Australia on 2 April 2006 on a false passport claiming to be an adherent of the Shouters Church, which is a banned organisation in China. She made a claim for a protection visa about six weeks after her arrival using her true name. The tribunal accepted that she did in fact apply for the visa in her true name. 2 The applicant graduated from school in June 2004 and then went to another province in China to assist her brother in his food shop which was close to a village with people from a different ethnic background. She claimed to have been introduced to the Shouters or local church in about late 2004 or early 2005 and when she returned to the area in which her brother was residing she became friends with a person who was a leader of the church. She claimed that that leader had asked her to organise a women's and children's group to spread the gospel and to help the members of the local ethnic group give up their bad habit of smoking which involved, so she claimed, children commencing to smoke at about the age of 10. According to her claims, in August 2005 the authorities detained two of the leaders of the church for a week and the authorities warned the applicant not to get involved in illegal gatherings. She claimed that from October 2005 religious gatherings of the church were held in caves near the village. 3 The applicant claimed that in January 2006, when she and her brother had returned to their home province for their grandmother's funeral, she learned that the police had arrested the leaders of the church while they were at a church ceremony in one of the caves and that the police were looking for her, denouncing her as a key member of the church. She claimed that after that the police had sought to arrest her on a number of occasions and had questioned her parents as to her whereabouts. She also claimed that on 1 March 2006 the police sealed up her brother's food shop and took him into custody for investigation and, although he had been subsequently released, he was still being investigated. In that context she obtained a false passport and escaped to Australia. 4 The tribunal had a hearing on 5 October 2006 at which the applicant gave evidence. The tribunal member questioned the applicant in detail about the claims and her associated evidence. The tribunal's recounting of the questioning revealed that the applicant had a reasonable knowledge of the Christian religion. The tribunal noted that after the hearing the applicant had provided it with a letter from the local church in Sydney confirming the applicant's attendance at church meetings for the preceding six months until one month before, when she had moved to Brisbane. The tribunal found that that information had been confirmed when the tribunal contacted the local church itself. 5 On 19 October 2006 the tribunal sent to the applicant a letter under s 424A of the Migration Act 1958 (Cth). The letter asserted that there were a number of inconsistencies between the applicant's statements at the hearing and country information and invited her to comment on four specific pieces of country information, three of which were to do with the local church and the fourth to do with the people in the village of different ethnicity to the applicant. The letter concluded by noting that the inconsistencies which the tribunal had identified cast doubt on the applicant's claim that she would be persecuted were she to return to China and may lead to a finding that she did not meet the relevant criteria for the grant of a protection visa. The letter then said: "It also indicates that you may not be credible and that evidence has been created and provided to the Department and Tribunal to obtain a protection visa. This may lead the Tribunal to find that you will not be persecuted if you return to China and that you do not meet the relevant criteria for the grant of a protection visa." The applicant responded to the letter in early November 2006 by answering each of the four particular items which the tribunal had raised. 6 In its findings and reasons the tribunal said that it found a number of aspects of the applicant's oral evidence problematic and in particular her lack of knowledge of the relevant ethnic group, her motivation for joining and continuing to participate in the local church, the leader's motivation for wanting her to join and the events she described from August 2005 to January 2006 with the associated police interest. It said: "These difficulties lead the Tribunal to find that the applicant is not credible and not being truthful." 7 The tribunal disbelieved the applicant's evidence that she was involved with the local church in China and disbelieved or regarded as implausible effectively the whole of her account. It also said: "Whilst the applicant was able to provide details of Christian belief and of Local Church beliefs and practices, her reasoning for becoming a member and leading a group, namely to prevent the smoking is not credible. In addition she was unable to provide details of the Local Church which the Tribunal would expect would be known by someone who had genuinely been a member since March 2005, including approximately six months practice in Australia." (Emphasis added.) 8 The tribunal saw as an issue that the applicant had told it that the local church accepted other churches whereas the country information indicated that it believed institutionalised Christianity such as the Roman Catholic Church and others were in a fallen state and those institutions were evil. Ultimately the tribunal concluded that the applicant did not become a member of the local church in China as she claimed, although it accepted that she had attended the Sydney church. The tribunal said that: "… as it has not found her credible it is not satisfied she engaged in this conduct other than for the sole purpose of strengthening her refugee claim. Accordingly, it has disregarded this conduct in assessing her case as required by s 91R(3)." 9 The discomfort I have about this case is connected to those findings. I have considered whether it would be appropriate to apply a test such as that identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, namely that if a result appears to be unreasonable on the supposition that the decision-maker addressed the exercise of his or her jurisdiction in accordance with law where no reasons for the decision are given: "… then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law." 10 Before the Federal Magistrate the applicant relied on a number of bases for asserting that the tribunal had made a jurisdictional error. First, she relied on the fact that another member of the tribunal had granted a visa to her brother before the decision in her own case. There was no evidence before his Honour that that was the case but the applicant has sworn an affidavit before me setting out her grounds of appeal and particulars in which she swears that it is. In essence, she claimed that the tribunal had not exercised its function properly and carefully to consider her claim. It gave a number of particulars including the apparent inconsistency between her knowledge of Christian doctrine, her attendance at the local church in Sydney for apparently a period of no more than five months while she was in Australia and its disbelief in any participation by her in any church activity in China as she had claimed. As I have noted, the tribunal had made the finding in the passage I quoted from its reasons above that the applicant was able to provide details of Christian belief and of local church beliefs and practices. She contended that what the tribunal had discussed in the hearing led her to believe she need do nothing further to substantiate her membership of the church. 11 His Honour noted that the delegate had refused the applicant's application on the ground that her account in her application for a visa of her introduction to the local church and the actions of one of the leaders which she described lacked credibility. Further, there was no evidence or the transcript of what had occurred before the tribunal before his Honour. He relied, as must I, on the tribunal's description of the course of the questioning in the oral hearing before it. His Honour considered that the applicant's complaints that the tribunal did not accept her claim to have been a member of the local church in China raised no more than an argument going to the merits of the tribunal's assessment. He said that it was not illogical, capricious or perverse for the tribunal to accept that in Australia the applicant had acquired knowledge of the local church and attended its meetings, while concluding that she had not engaged in local church activities in China as she claimed. 12 In my opinion, it is arguable that the delegate's rejection of her application on the ground that the applicant's claim to have had an association with the local church in China lacked credibility could not be treated as having put her on notice that she had fabricated that association with the church by attending its meetings in Australia and gained her knowledge of Christian beliefs and practices solely in the short period in which she was in this country, and, in particular, the period between lodging her application and the refusal of the delegate. (cf: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 600-602 [35]-[43]). There is no record in the tribunal's recitation of its questioning of the suggestion being made to the applicant that she had made up or deliberately set out to fabricate an association with the church in lodging the visa application. Yet the tribunal found not only that it was not satisfied by the applicant's account but that she was not being truthful. 13 Although I recognise there is a clear delineation between the function of the tribunal to determine the facts and the Court's role to ensure that in doing so the tribunal only acted in accordance with law, and that the Court cannot engage in merits review, I consider that the difficulty I have in the tribunal's reasoning on this issue suggests that there may be an arguable case which the applicant could put that the tribunal erred for the reasons given by Dixon J in Avon Downs 78 CLR at 360. 14 Not without some reservations, I have concluded that this an appropriate case in which to grant leave to appeal and to refer this matter to a legal practitioner under O 80 of the Federal Court Rules 1979 (Cth) to provide legal assistance to the applicant in the appeal I consider should be allowed to be filed. I should make clear that I have formed no view about the merits of the matter but merely consider that there is an arguable case which the interests of justice require be able to be ventilated if, after a lawyer considers it, it is thought to merit such ventilation. 15 I also note that I informed the applicant that the circumstances in relation to her brother's claim having been granted may, when drawn to the attention of the Minister in an appropriate way, enliven a reconsideration by him of her case pursuant to s 417 of the Act. Certainly, consistency in the results of administrative decision-making concerning members of the same family is to be encouraged. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.