SZMQS v Minister for Immigration and Citizenship

Federal Court of Australia|2009-03-03|Before: McKerracher J

INTRODUCTION 1 The appellants are husband and wife and citizens of China. They arrived in Australia on 17 February 2006. On 29 March 2006 they lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as the Department was then named). A delegate of the first respondent refused the application for a protection visa on 3 July 2006. On 2 August 2006 the appellants applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. The Tribunal, as first constituted, affirmed the decision of the delegate on 10 January 2007 and handed down its decision on 22 January 2007. 2 On 15 October 2007, the Federal Magistrates Court dismissed an application for review. However, on 21 April 2008 this Court ordered that the appeal be allowed, and the matter was remitted to the Tribunal. 3 The second Tribunal then also affirmed the decision of the delegate not to grant the appellants' protection visas in a decision handed down on 24 July 2008. They applied to the Federal Magistrates Court for review of that decision. 4 This is an appeal from a judgment of a Federal Magistrate delivered on 12 December 2008 (SZMQS & Anor v Minister for Immigration & Anor [2008] FMCA 1643), dismissing the application for judicial review of the decision of the second Tribunal.

THE APPELLANTS' CLAIMS 5 The appellant husband claimed to fear persecution in China because of his religious beliefs and activities. The appellant wife relied on the claims of her husband as part of the family unit. The appellant husband will now be referred to as the appellant in these reasons. 6 The appellant claimed his father was one of the major leaders of a Christian Church in Pingtan County. This had led his family being persecuted by Chinese authorities. His whole family was sent to Yongtai County in 1966 during the Cultural Revolution and did farm work for 10 years. 7 In 1989 he went to Fuzhou to participate in the pro-democracy movement. He was investigated and questioned a few times by the Public Security Bureau (PSB). Although he is educated and taught, he was suspended from teaching in September 1989, required to join a two week political study class and only allowed to do cleaning jobs at the school. That was when the appellant first decided to go overseas. 8 He first arrived in Australia on 26 December 1989 and remained for six years. In September 1991 he was baptised by the Christian Assembly of Sydney. In May 1996 the appellant returned to China because his father had been seriously ill. Upon his return to China he was investigated by the PSB on suspicion of being involved in 'overseas anti-government religious or political organisations' while in Australia. He was allegedly investigated several times during a six month period by the PSB because it had been reported that he was a member of the Christian Assembly of Sydney and because he had lodged a refugee application. He could no longer teach in schools in Pingtan County. However, with the help of a friend he was able to get a job as a teacher in a middle school but had to sign a statement that he promised to comply strictly with the relevant teaching policies under Communism. 9 In 2000, the appellant organised a bible study group of five or six members. Their target was 'to strive for genuine religious freedom and independent religious activities'. The group developed to about 30 people and he was warned or threatened by the PSB many times not to engage in anti-government religious activities. He was detained in 2004 for about three weeks and was physically and mentally mistreated. He said he 'had to disband his bible study group' and 'had to pay a penalty of 5,000 Yuan'. 10 After his release, the appellant's religious activities were restricted by the authorities. He was investigated, questioned and interrogated by the PSB and had to hide his religious beliefs to maintain his employment at the school. In early 2005, despite this he secretly organised a 'propaganda group', but was 'informed by a reliable friend of his wife that the PSB suspected he might be a key member in underground religious activities' and involved in the distribution of a petition.

BEFORE THE TRIBUNAL 11 The Tribunal accepted that the appellant was a Christian and that he participated in Christian activities in Sydney. The Tribunal considered that in significant respects his claims were inconsistent with information before it concerning the situation in China. In light of these inconsistencies, the Tribunal was not satisfied that his claims were credible. 12 Given the general level of religious freedom in the Fujian Province as adduced from a number of corroborated sources including independent country information, the Tribunal did not accept that the appellant was persecuted as claimed. 13 The Tribunal also did not accept that there was a real chance he would be persecuted for reason of his political opinion, noting that he was not a 'significant leader' in the pro-democracy movement in 1989. 14 Further, while the Tribunal accepted that, having been absent from China since February 2006, the appellant would have lost his employment as a teacher at his original school, it did not accept that he lost this employment for a Convention reason within the meaning of the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention). 15 The Tribunal did not accept that the appellant was investigated by the PSB on suspicion of being involved in overseas anti-government organisations, as a result of having been reported to be a Christian in a Church in Sydney and having lodged a refugee application. Although evidence was produced of a failed asylum seeker who was deported to China and claimed persecution upon his return, the Tribunal considered that it was impossible to conclude on the basis of the current case that failed asylum seekers generally face a real chance of being persecuted for a Convention reason if returned to China. 16 While the Tribunal took into account the cumulative effect of the appellant's circumstances as accepted by the Tribunal, it did not accept that there was a real chance the appellant would be persecuted for a Convention reason if he were to return to China now or in the reasonably foreseeable future.

THE FEDERAL MAGISTRATES COURT 17 In the application for judicial review and in submissions to the Court, the appellant raised a number of matters said to indicate jurisdictional error on the part of the Tribunal. As summarised by the learned Federal Magistrate, these were that the Tribunal: · did not undertake a bona fide review; · used country information which was old and out of date, made selective use of the information before it and failed to consider all of the evidence before it; · drew an inappropriate conclusion that the appellant would not be persecuted if he returned to China; · failed to assess the situation were the appellant to move within China to a location other than his home area; and · was biased. 18 The learned Federal Magistrate was satisfied that the second Tribunal undertook a proper, thorough and conscientious consideration of the matters arising out of the review application before it. 19 His Honour noted that it is a matter for the Tribunal to determine the weight to be given to any particular 'country information'; the fact that it might prefer some information over other information, including old information over new information, did not disclose jurisdictional error. In any event, despite the appellant's claim that the Tribunal only referred to the 2000, 2003, and 2004 Annual Reports of the United States Commission on International Religious Freedom, the learned Federal Magistrate found that the Tribunal had in fact referred to the May 2008 Annual Report which was supported by [51] and [92] of the Tribunal's decision record. His Honour found that even though the Tribunal only relied on part of the Report in question when reaching its decision, it was sufficiently clear that the Tribunal gave adequate consideration to that document. 20 The learned Federal Magistrate found that it was not the role of the Court to review the factual conclusions of the Tribunal. 21 His Honour found that there was no duty on the Tribunal to consider or pursue, by questions, a claim which the appellant did not articulate and which did not arise clearly from the material already before it. 22 Finally, his Honour found that far from demonstrating that it approached the review with a mind already fixed on an outcome, the Tribunal's decision record disclosed a conscientious examination of the facts. This was consistent only with an open mind. The allegation of bias was therefore not made out on the material before the Court. 23 As no jurisdictional error was established, his Honour dismissed the application.

GROUNDS OF APPEAL 24 The notice and grounds of appeal as best understood (in favour of the appellant) raise, in substance, the following grounds:

The Tribunal incorrectly used independent country information;
The Tribunal failed to give sufficient weight to the chance of future harm to the appellant;
The Tribunal was biased;
The Tribunal failed to assess the situation if the appellant moved elsewhere in China. 25 Although the grounds are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 26 At the hearing of the appeal before me the appellant, who addressed the Court in some detail, gave a number of examples of what he described as illogical questions raised and conclusions reached by the Tribunal. It was quite clear however that to the extent those matters were raised they went solely to a challenge to the findings of credit. The legislation does not grant jurisdiction to this Court to revisit credit findings. The appellant's oral submissions did not raise any additional jurisdictional issues beyond those set out in the notice and grounds of appeal.

Ground 1 - Country Information 27 The first written ground advanced by the appellant is that the Tribunal incorrectly relied on independent country information. In particular, the appellant asserts that the Tribunal made an error by relying on the 'generalization' that 'the Fujian province has one of the most liberal policies on religion in China'. 28 As noted by the Federal Magistrate (at [22]), the selection of which country information the Tribunal relies upon in reaching its decision is a matter for it. The Full Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at 11]): ... There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that. 29 In oral submissions before the Federal Magistrate, the appellant submitted that the Tribunal referred to reports from 2000, 2003 and 2004. He asked why the Tribunal did not use the report from 2008. However, as the Federal Magistrate found, it is apparent from paragraphs 51 and 92 of the Tribunal's decision record that the Tribunal didin fact have regard to the 'May 2008 Annual Report of the United States Commission on International Religious Freedom' which had been supplied to it by the appellant's then-representatives. 30 In respect of the claim that the Tribunal made an error by relying on the 'generalization' that 'the Fujian province has one of the most liberal policies on religion in China', the Tribunal put to the appellant at the hearing the information which supported this finding. The Tribunal accepted the appellant's claim that it is difficult for international organisations to be comprehensive in their coverage of China, but found that all the independent evidence available to the Tribunal suggested that there is considerable variation in the degree of religious freedom permitted in different provinces in China. It was for these reasons that the Tribunal relied on the evidence of an officer at the Canadian Embassy, who had actually visited the area where the appellant resided. Based on this evidence, the Tribunal reached the view that it was difficult to accept that he would have had the problems he claims to have had for reasons of his religion in the Fujian province. 31 No error can be found in the approach of the Tribunal in this regard.

Ground 2 - Future Harm 32 In relation to the second ground, the appellant claims that 'the Tribunal has taken too lightly and too generously the view that I will not face genuine danger when I return to China'. Before the Federal Magistrate, the appellant similarly claimed that it was inappropriate for the Tribunal to draw the conclusion that he would have no trouble or persecution were he to return to China. In this respect, his Honour found (at [31]) that such a finding: …was a factual finding which also reflects the Tribunal's ultimate decision on the merits of the review application before it. Just as the Court cannot review a factual finding of the Tribunal, neither can it review the Tribunal's decision on the merits of the application nor substitute its own view: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 33 Although the Tribunal accepted that the appellant was a Christian and participated in Christian activities in Sydney, the Tribunal considered that significant aspects of his claims were inconsistent with information before it concerning the situation in China. In light of these inconsistencies, the Tribunal was not satisfied that his claims were credible. Given that the Tribunal rejected the appellant's claims to have suffered any harm for reasons of his religious beliefs, it was open for the Tribunal to conclude that there was not a real chance the appellant would be persecuted for one or more of the five Convention reasons if he were to return to China now, or in the reasonably foreseeable future.

Ground 3 - Bias 34 The third ground advanced by the appellant is that the Tribunal was biased. In relation to allegations of bias, it is well established that such allegations must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. Rarely will bias on the part of the Tribunal be apparent from the written reasons only: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358. 35 In this case, there is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at 27-32). Nor does a fair reading of the Tribunal's decision disclose a lack of an honest or a genuine attempt by the Tribunal to make a decision, including in the conduct of its review (NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 207). 36 This ground of appeal cannot succeed.

Ground 4 - Relocation within China 37 In relation to the fourth ground, the appellant refers to paragraph 32 of the decision of the Federal Magistrate where his Honour dealt with the claim by the appellant that the Tribunal had failed to assess the situation if appellant moved elsewhere in China. His Honour noted that the appellant did not submit that he had given evidence to the Tribunal to the effect that he intended to move around China undertaking his evangelism and in doing so to move beyond his own province. Nor was there anything contained in the Tribunal's decision record which would support a conclusion that he had canvassed such an issue. 38 His Honour then proceeded to consider the question of whether, nevertheless, the Tribunal ought to have considered this possibility. His Honour noted that the Tribunal is required under s 414 of the Act to consider the claims of the appellant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]. Further, the Tribunal is not limited in its considerations to the claims articulated by the applicant if additional claims are raised 'squarely' on the material available to the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]. Even so, in NABE's casethe Full Court held that an unarticulated claim must emerge clearly from the materials before the Tribunal will be obliged to consider it (at [68]) and a claim requiring such consideration will not depend for its exposure on constructive or creative activity by the Tribunal (at [58]). His Honour referred also to the decision of Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, where his Honour stated at [15]: Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 39 His Honour found that the appellant pointed to no part of the Tribunal's decision record to indicate that movements within China was a contention which should have been sufficiently apparent to the Tribunal that it ought to have pursued or considered it. Indeed, the appellant's evidence as recorded by the Tribunal suggested nothing of that nature. Rather, with the single exception of petitions to the central government, the focus was on those immediately around him. For these reasons, his Honour concluded that the Tribunal had no duty to consider or pursue by questions a claim which the appellant did not articulate and which did not arise clearly from the material already before it. 40 No error of law is discernable in the approach of the Tribunal, or Federal magistrate, in this regard.

CONCLUSION 41 In my opinion, his Honour's conclusion was correct and I will order: 1. The appeal is dismissed. 2. The appellants are to pay the first respondent's costs fixed at $3,600. I certify that the preceding forty-one (41) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate: Dated: 3 March 2009 The Appellants represented themselves.

Solicitor for the First Respondent: Sparke Helmore

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