SZHJH v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-27|Before: Middleton J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 22 October 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') signed on 12 July 2006 and handed down on 25 July 2006. 2 The appellant is a citizen of the People's Republic of China, who arrived in Australia on 12 December 2004. On 25 January 2005 the appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural Affairs. A delegate of the first respondent refused the application for a protection visa on 29 April 2005. On 3 June 2005 the appellant applied to the Tribunal for a review of that decision. 3 The decision of a first Tribunal on 21 September 2005 was set aside by the Federal Magistrates Court on 23 March 2006 and remitted to a second Tribunal, the decision of which is the subject of the present appeal.

THE TRIBUNAL'S DECISION 4 In his application for a protection visa, the appellant claimed to have well-founded fear of persecution based on his Catholic religion and his political opinion. The appellant claimed that he was born into a Catholic family, and was taken to an underground church and baptised when he was aged 10. He claimed that six years later he was taken from his home by the Public Security Bureau ('PSB'), and interrogated about his involvement with the church, and his mother was detained. He allegedly encouraged members of the public church to seek religious freedom, and received warnings from the public church. He claimed that in 1999 he was detained and interrogated for three weeks by the PSB for spreading anti-government ideologies. 5 After his release the appellant allegedly became involved in an underground church and became a key member, and in 2001 began his own group with more than 50 members, and spread propaganda. The appellant claimed that in 2003 one of the members was arrested. The member's father informed the PSB about the appellant, and the appellant was subsequently arrested. However, the appellant was released for lack of evidence, as the member took all responsibility and was sent to a labour camp. After the appellant's release he built a secret basement to print religious material and continued group meetings. 6 He claimed that in 2004 he decided to leave China because the group he had belonged to was destroyed by the PSB and some members were arrested. The leader of that group was arrested while trying to go overseas, and informed the PSB about the appellant's involvement in the underground church. 7 After the Tribunal hearing the Tribunal handed the appellant a letter entitled 'Invitation to Provide Information', giving him the opportunity to comment on information that 'could…be the reason, or part of the reason' for the decision. The appellant's agent responded on 10 July 2006. 8 The Tribunal was not satisfied the appellant was a fully credible witness due to his lack of knowledge of Catholicism, Christianity and the Bible, and his ability to leave and return to China using his own passport. It therefore found that he was not a key member or an active member of an underground church, and that he would not be arrested if he returned to China. 9 The Tribunal however did accept on the basis of a letter from the Chief Priest of Fuqing Parish that the appellant was 'a believer and follower of the Church'. The Tribunal also accepted that the appellant had attended church in Australia and could in the future be associated with an underground church in China. However, the Tribunal noted independent country information that showed Roman Catholic underground church members were not persecuted in Fujian, and it was therefore not satisfied that the appellant would be subject to serious harm amounting to persecution for a Convention-related reason now or in the reasonably foreseeable future.

THE FEDERAL MAGISTRATE'S DECISION 10 On 24 August 2006 the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant claimed in an amended application dated 30 January 2007 that the Tribunal made jurisdictional error and denied him natural justice because it failed to consider the appellant's claims properly or fairly and breached s 424, s 424A, and s 425 of the Migration Act 1958 (Cth) ('the Act') as the hearing was arranged as 'a mere formality' and the Tribunal was biased. 11 The Federal Magistrate found no obligation on the Tribunal to send a s 424 letter to the appellant. His Honour also found no error or apprehended bias in the Tribunal handing a s 424A letter to the appellant after the hearing, possibly having drafted it before the hearing on the basis of anticipated questions and responses. 12 The allegation of bias in relation to s 425 was also rejected. His Honour noted that the Tribunal took all information before it and the previous Tribunal into account, undertook its own testing of the appellant's religious knowledge, and gave him the opportunity to respond to independent country information. His Honour therefore could find no jurisdictional error and dismissed the application.

GROUNDS OF APPEAL 13 In the notice of appeal filed on 9 November 2007 in this Court, the appellant claimed that the Tribunal failed to consider the appellant's claims properly and failed to comply with s 424, was biased and denied the appellant a genuine opportunity to present his evidence at a hearing, erred in handing the appellant a letter after the hearing which was intended to deprive his right of further review, breached s 424, s 424A, and s 425 of the Act, ignored the appellant's claims in the letter he submitted to the Tribunal, and wrongly considered the evidence of the appellant. 14 At the hearing of the appeal before me the appellant submitted that the Federal Magistrate did not give his case a good consideration and was not fair, that the Tribunal breached s 424A of the Act, and that the Tribunal rejected the letter tendered 'on the spot', which I take to mean without proper consideration.

CONSIDERATION 15 In essence, the Tribunal, based on the evidence, found that the appellant's claims were not established, that the appellant was not a credible witness, and had embellished his claims. The Tribunal's findings concerning the appellant's credit are matters of fact: Re MIMA; ex parte Durairajashingham (2000) 168 ALR 407 at [67]. So long as these findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559; W148/00A v MIMA (2001) 185 ALR 703 at [64]-[69]. The Tribunal's conclusions were open for the reasons it gives. The Court cannot review the merits of the Tribunal's decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. 16 The Tribunal was entitled to explore the appellant's knowledge of Christianity at the hearing and make findings based on his lack of knowledge: SBCC v MIMA [2006] FCAFC 129 at [45]; WALT v MIMIA [2007] FCAFC 2 at [30]. This properly supported the ultimate decision of the Tribunal. 17 Before the Federal Magistrates Court the appellant raised by way of appeal grounds a breach of s 424A and s 425, apprehended bias, and that the Tribunal failed to take into account the appellant's explanation for lack of knowledge of Christianity at the hearing as well as seeking merits review. His Honour rejected each ground of appeal. 18 The notice of appeal and the oral submissions repeat the grounds and submissions which failed before his Honour, but does not explain why his Honour erred in rejecting them. No written submissions have been received from the appellant. 19 In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct. The Tribunal did properly consider the appellant's case, including the explanation for lack of knowledge of Christianity, which the Tribunal specifically addressed and rejected. The Federal Magistrate, in my view, did give proper consideration to the appellant's case and dealt with the matter appropriately and fairly. 20 The appeal should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Counsel for the Appellant: Self-represented

Solicitor for the First Respondent: Sparke Helmore

Date of Hearing: 27 February 2008

Date of Judgment: 27 February 2008

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