CTHFCA

SZIFS v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal

[2006] FCA 1574

Federal Court of Australia|2006-11-30|Before: Cowdroy J

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Court

Federal Court of Australia

Decision date

2006-11-30

Before

Cowdroy J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Scarlett FM of 18 May 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 20 December 2005 and handed down on 17 January 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') to refuse to grant a Protection Visa to the appellant. 2 The appellant, a citizen of the People's Republic of China ('PRC'), claimed to have a well-founded fear of persecution because of her religious beliefs and because she was a member of an underground church. The appellant claimed that she had been a practising Christian and that someone had betrayed her religious group to the authorities. She claimed that she was detained for three to four days and was interrogated and that after her release, those remaining in detention were questioned about her. The appellant claimed that her workplace was notified of the investigations and of her detention and that it will now be difficult for her to obtain employment. She also claimed that there will be adverse consequences if the PRC government finds out about her application for protection in Australia. 3 The Tribunal invited the appellant to attend a hearing on 14 December 2005. The appellant attended and gave oral evidence with the assistance of an interpreter.

[2]

DECISION OF TRIBUNAL 4 The Tribunal initially found that the appellant's oral evidence was contradictory and that she was confused in relation to her claimed religious activities. The Tribunal nevertheless accepted the appellant's evidence. The Tribunal found that she had not suffered serious harm in the PRC and that there was no real chance that she would suffer any form of economic hardship or discrimination amounting to hardship on her return to the PRC. 5 The appellant claimed that she attended an underground religious group from about 1998 until her departure from the PRC in August 2005 and that she was detained and questioned in March or April 2001. She alleges that other members of the group were similarly investigated from 2003 onwards. The appellant claimed that she continued her involvement until her departure from the PRC. However, the evidence disclosed that the appellant had visited Japan for six months between 2002 and 2003 and had not been involved in public religious worship in that country, nor had she been involved in similar worship in Australia since her arrival in 2005. 6 The Tribunal concluded that the appellant was of no particular interest to the PRC authorities and had suffered no restriction in respect of her religious activities in the period prior to her departure from the PRC in August 2005. The Tribunal also found that there was no credible evidence before it to suggest that the situation would be any different if the appellant returned. The Tribunal found that the appellant was able to continue to express her religious beliefs without a well founded fear of persecution, and accordingly it was not satisfied that Australia owed protection obligations to her.

APPEAL TO THIS COURT 12 The Notice of Appeal to this Court raises four grounds, namely that Scarlett FM erred in failing to recognise the principle of non-refoulement contained in Article 33 of the Convention and erred in failing to find that the Tribunal had erred in not applying this principle; that His Honour erred in relying on the decision of Makhu v Minister for Immigration [2004] FCA 221 in relation to the way in which the Tribunal dealt with the appellant and her representative; that His Honour erred in failing to find that the Tribunal's finding of the appellant's lack of bona fides was due to the Tribunal acting with a closed mind or proceedings on the basis that it was seeking reasons to decide against the appellant; and that Scarlett FM erred in failing to consider whether the Tribunal's overall findings and the alleged errors contained within those findings showed the lack of a bona fide attempt to consider the application. 13 The appellant appeared at the hearing before me and sought an adjournment on the basis that she needed time to prepare documents for the hearing. The appellant claimed that she was only notified of the date for hearing of her appeal two weeks prior to the hearing and that she did not have enough time to seek advice. 14 The Court observed that the appellant was informed by letter dated 4 October 2006 of the hearing date. No explanation has been provided for her failure to obtain legal advice since that date. The appellant claims that she had sought advice previously from Mr Deng, who purported to be a migration agent, and that she had paid him the sum of $6000 in fees. 15 The Court declined to grant the adjournment requested by the appellant. However an extension of time to 4 pm on 24 November 2006 was granted to enable the appellant to provide further written submissions. Written submissions were received pursuant to that leave. In those submissions the appellant claims that the Tribunal breached of s 424A of the Act and that it should have informed her of the services available to obtain legal assistance or migration advice through a migration service. She claims that it was only during the Tribunal hearing that a Chinese interpreter explained the review power of the Tribunal under the Act and that had she been so informed she would not have been misled by her adviser. The appellant also sought a further extension of time in which to prepare further submissions and requested another hearing in this Court.

SZIFS v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal

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Judgment (13 paragraphs)

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