SZMSG v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant was born in Fujian in the People's Republic of China on 15 April 1978. On 7 September 2001 he was issued with a passport by the People's Republic of China and on 26 November 2007 he was issued with a three-month sponsored family visitor visa subclass 679 by the Commonwealth of Australia. 2 In a letter dated 20 June 2008 from the Refugee Review Tribunal ('the Tribunal') to the appellant's migration agent, Priscilla Yu of Priscilla International Co. Pty Ltd, the Tribunal invited comment or a response from the appellant to certain information that was put to him that the Tribunal considered would, subject to any comments or response he may make, be the reason or a part of the reason for affirming the decision that was under review by it. 3 The letter included an observation that in his application for the visa, which was issued to him on 26 November 2007, he had indicated that he was employed as a manager of marketing, that he had been so employed for three years and two months and that his managerial position was in respect of a beauty product company. The application for a visa contained documents, so the letter said, including bank account details indicating that the appellant had 50,000 yuan in an account. The application was apparently also accompanied by a certificate of assets, indicating that the appellant had shares valued at 164,600 yuan and a property of which he was the owner in Rong Cheng Town. 4 The appellant left China on 31 December 2007, arriving in Australia on 1 January 2008. On 15 February 2008 he applied for a Protection (Class XA) visa. That application was accompanied by a statutory declaration made by the appellant on 14 February 2008. 5 The application for a protection visa was considered by a delegate of the Minister, who decided, on 7 March 2008, that it should be refused. Prior to his refusal of the application, the delegate invited the appellant to attend an interview and on 5 March 2008 such an interview took place. 6 On 4 April 2008 the appellant applied to the Tribunal for review of the Minister's delegate's decision. 7 An invitation was extended to the appellant to attend a hearing before the Tribunal on 13 June 2008. On that day a hearing took place before the Tribunal which lasted for some three hours and 24 minutes with the appellant and three other persons in attendance. After the Tribunal hearing, the letter of 20 June 2008 was sent to the appellant, so it would seem, on the basis that it was required by s 424A of the Migration Act 1958 (Cth) ('the Act'). 8 In the statutory declaration accompanying the application for a protection visa, the applicant had set out material directed at establishing that Australia had protection obligations under the Refugees' Convention, as amended by the Refugees' Protocol, as defined in the Act, to the appellant as a non-citizen in Australia, within the meaning of s 36(2)(a). The basis upon which the appellant claimed that Australia had such protection obligations was owing to well-founded fear of being persecuted for reason of religion within the meaning of Article 1A(2) of the Refugees' Convention, as amended by the Refugees' Protocol. 9 In the statutory declaration made 14 February 2008 the appellant claimed to have been employed in March 2001 as a construction labourer at various constructions sites in Shanghai. He claimed that in December 2005 he returned to his home town, where he was married on 31 December 2005. He said that he returned in March 2006 to Shanghai, continually working as a construction labourer. In that context he said: '14. … I have a good friend … who has worked together with me in Shanghai. [He] was a Christian, and used to spread Gospel to me; but at that time, I could not accept it, because … I used to trust the Communist very much. But, right now, I have greatly been changed. … I began to approach [my friend's] religious activities and attended a Bible study group organized by [my friend] from the end of March 2006.' 10 The appellant proceeded to recount that on 28 May 2006 he had been baptised in the bathroom at his friend's home in Shanghai and since then had become a devout Christian. It will be apparent that there was a significant conflict between what the appellant said in his statutory declaration about his work as a construction labourer and that which he apparently said in his application for an Australian visa, where he claimed that as of 19 November 2007 he had been employed as a manager of marketing for a beauty product company. Plainly, if the latter were true it would be unlikely that he would be put into contact with his friend, as he said he was, when working with him as a fellow construction labourer. 11 In his interview with the Minister's delegate, the appellant disclosed in some detail his participation in religious activities. The Minister's delegate expressed the opinion that the appellant had embellished his claims of being a leader of a bible study group. The delegate was not satisfied that the appellant was a genuine Christian with his claimed profile. 12 At the hearing before the Tribunal it does not appear that questions were asked of the appellant as to his Christian beliefs, although there was apparently some consideration of matters such as his claimed baptism and matters going to his religious observance. 13 In her reasons the Tribunal member said, amongst other things: '30. … The applicant stated that he was in fear of the Chinese authorities because he had organised serving and retired soldiers to attend religious gatherings and this is a very serious matter. He stated that persons who are retired from the military must be very careful and are not allowed to have any religion. He stated that no army person is allowed to belong to any church. … 35. The applicant stated that his fear of persecution relates only to his religion. …' 14 The appellant's main concern with the expression of reasons of the Tribunal member, who decided that the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa should be affirmed, was that the Tribunal member did not ask him anything about his religion but based its findings on his claimed Christianity by reference to the interview which he had with the departmental officer on 5 March 2008. Coupled with an apparent inability on the part of the appellant to produce a certificate of baptism, which he said that he had obtained but which he had left in China, he summed up his concerns when he said in the course of his submissions to the Court: 'I didn't think the Refugee Review Tribunal would reject me based on what I said to the Minister's delegate. … or words to that effect. 15 At [49] in her reasons for decision the Tribunal member said: '49.I asked the applicant what preparation he had engaged in prior to his baptism. He said he confessed to the Pastor … what he had done against the Ten Commandments. I asked what he had said. There was a long delay before the applicant replied. He then said that the Pastor asked him if he had anything to confess and if not to say so. The applicant said yes to some of them. He confessed to being attracted to girls and wanting to get close to them. He was asked if he had stolen anything or been nasty to his parents. On the same day he was baptised at [his friend's] house by [his friend] and his uncle. Present were [his friend], his uncle and the Pastor …. The applicant's wife was not there. She was at work. I expressed surprise that the applicant's wife did not attend his baptism given the significance of baptism in the Christian religion. The applicant said she works Sundays and does not have weekends off. The baptism took place at noon. There was no celebration. The applicant did not take a Christian name.' 16 I interpret the matters which follow the expression of 'surprise' in this paragraph of the Tribunal member's reasons as all being the subject of surprise on her part. 17 In my opinion Tribunal members should have regard to the observations of Mansfield, Jacobson and Siopis JJ in Walt v The Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28], where their Honours indicated that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion and then went on to say: '28 … Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.' 18 At [62] the Tribunal member said: '62. I mentioned to the applicant that the information contained in his tourist visa application seemed more authentic than his claims that he was working as a labourer at a building site for some years. I mentioned to the applicant that he was a well-educated, articulate young man and that I had no difficulty believing that he was employed as a manager in such a company. … 19 The tribunal member proceeded to say at [65]: '65. I mentioned to the applicant that having listened to his interview with the Department it appeared that his knowledge of the bible was not extensive, given his claim to have studied it for many months three times per week prior to coming to Australia. I also mentioned to the applicant that his unhindered departure from China seemed to indicate that he was not of great interest to the authorities. I asked the applicant if he wished to comment on any of those matters or would he prefer to respond and or comment in writing. The applicant stated that he would like to comment in writing at a later date. He did not wish to add anything further in relation to his claims.' 20 At [75] in her reasons for decision the Tribunal member recorded that the Tribunal was not satisfied that the applicant was a labourer in China and that through his work he met [his friend], who introduced him to Christianity. Further, the Tribunal did not accept that the appellant was baptised or that he became involved in underground church activities in China. The Tribunal did not accept that his wife was baptised. At [77] the Tribunal member indicated that she did not accept that the appellant was involved in underground Christian activity in China. At [76] the Tribunal member drew attention to the fact that the appellant's parents attended an official church in China. She expressed the opinion that should the appellant choose to continue his interest in Christianity, similar to his parents, he would attend an official church were he to return to China. 21 The appellant, in his submissions to the Court on the hearing of his appeal, suggested that as a former member of the military he was not permitted to attend an official church or an underground church. 22 The problem confronting the appellant is that the Tribunal member reached her decision primarily on the basis that she formed the overall view that the appellant lacked credibility and was unable to accept his Convention claim. The Tribunal member detailed her reasoning in a series of seven bullet points which appear in paragraph 74 of the statement of reasons. 23 In part the Tribunal member relied upon the inability of the appellant to give more detailed information regarding prayers and psalms during his departmental interview, given that he claimed to have studied the bible for many months, three times per week prior to coming to Australia. The Tribunal member was also significantly influenced by the inconsistency between the appellant's claim to have been a construction labourer and his claim in his application for a tourist visa, which he did not dispute, that he had been a marketing manager. In his statutory declaration, in response to the s 424A letter that was sent to him, he said, amongst other things: '2. I might have to accept that the tourist visa application which was lodged on 19 November 2007 indicated that I was employed as a manager of marketing for three years and two months as of 19 November 2007, for a beauty product company; …' I understood what was contained in the statutory declaration to be an indication that in completing the application for a tourist visa the appellant had not told the truth. 24 It is clear that the Tribunal member was not satisfied that the applicant worked as a construction labourer. This seems to have significantly influenced the decision that was reached as to the connection with [his friend], who was said to have introduced him to Christianity. 25 The appellant sought Constitutional writ relief in respect of the decision of the Tribunal, relying upon some six grounds of appeal. The application came before the Federal Magistrates Court of Australia on 11 February 2009. On that day the learned Federal Magistrate ordered that the application be dismissed and that the applicant pay the respondent Minister's costs assessed in the sum of $4500. 26 From the decision of the learned Federal Magistrate an appeal was brought by the appellant to this Court by a Notice of Appeal filed 4 March 2009, which contained some six grounds of appeal. The appellant indicated that he had been assisted in the preparation of the Notice of Appeal. He says that he is unable to read English. I invited the interpreter, who has assisted him throughout the hearing, to interpret for him each of the grounds seriatim. Following the interpretation of each of the six grounds I invited the appellant to address the Court indicating what he wished to say in support of those grounds. 27 Suffice it to say that nothing was said by the appellant which suggested jurisdictional error on the part of the Tribunal member. The appellant did not seek to obtain or place before the Tribunal a transcript of the evidence given by him to the Minister's delegate nor did he seek to rely upon any recording of his evidence. 28 Before the Federal Magistrate he did not seek to tender a recording of what he had said before the Minister's delegate nor did he seek to tender a transcript of what he had then said. Furthermore, he did not seek to tender a transcript or a recording of what had occurred before the Tribunal member. 29 Section 65 of the Act relevantly provides: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 30 Section 420 of the Act provided for the process whereby the Tribunal would exercise its powers as follows: '420(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case. 31 The purpose of a provision such as s 420(2) was explained by Gummow and Heydon JJ with whose reasons Gleeson CJ agreed in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte applicant S154/2002 (2003) 201 ALR 437 at [56] ('Applicant S154/2002') as follows: '[56] … The purpose of a provision such as s 420(2) is to free bodies such as the tribunal from certain constraints otherwise applicable in courts of law which the legislature regards as inappropriate. Further, … administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial.' 32 Plainly satisfaction under s 65(1) of the Act is not to be addressed by deciding where the truth lies on the balance of probabilities. As has been said many times, proceedings in the Tribunal are not adversarial, but rather inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]). 33 The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may seek to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Heydon JJ in Applicant S154/2002 at [57]-[58]). Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of pre-judgment (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister of Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]). 34 It is not part of the function of this Court to consider the case of the appellant on the merits. In my opinion, no jurisdictional error has been identified by the appellant which would warrant the grant of Constitutional writ relief in respect of the decision of the Tribunal of 28 July 2008, which was handed down on 7 August 2008. In my opinion the appeal should be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.