SZIGO v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China who arrived in Australia on 26 January 2005. On 9 March 2005 he applied for a protection visa. The application was refused by a delegate of the first respondent. The delegate's decision was affirmed by the Refugee Review Tribunal. The appellant's application for review of that decision was dismissed by the Federal Magistrates Court. The appeal is from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is heard by a single judge. 2 The appellant's claim is that he had a well‑founded fear of persecution by the Chinese authorities because he organised an underground bible study group. This group originated with labourers at a construction site but expanded to include members from other villages. The Tribunal accepted that it was more probable than not that the appellant was Christian. However, it found his claims were not credible. In particular it had concerns with a 'certificate' from the church in his hometown indicating he was a key member of the church. The Tribunal found the appellant had no grounds to fear persecution. 3 In the Federal Magistrates Court the appellant asserted the Tribunal had failed to comply with s 424A(1) of the Migration Act 1958 (Cth), ignored relevant material, and had never fairly and carefully assessed his application. The Federal Magistrate found there was no breach of s 424A(1). Her Honour also found the Tribunal had not ignored relevant material, had considered all the evidence and was entitled to obtain information from whatever sources it saw fit. The Magistrate said the Tribunal's decision turned on a finding that the appellant's claims were not credible, and that it was entitled so to find. 4 The first ground of appeal is that the Magistrate erred in holding that the Tribunal had complied with s 424A(1). The issue here concerns the Tribunal's comments on the certificate referred to at [2]. This is a post‑hearing letter the appellant presented to the Tribunal in response to the Tribunal telling him at the hearing that it was surprised he had not provided any evidence to support his claims of association with any church in China. The letter was signed by senior members of his Church in China. The Tribunal said at page 10 that the letter undermines his claims that the members of the congregation of his church are subject to persecution in China. The fact that no less than five leaders of his church signed a letter purporting to attest to his association with the church, and faxed a copy of the letter from China and subsequently couriered the original copy of the document to Australia, does not suggest an environment of persecution of the congregation. If the Chief Executive of the Church and other senior [members] are currently able to live in China, and are free enough to be able [to] fax and courier mail out of the country on the church's letter head, then it is not plausible that the applicant would be of adverse interest to the authorities even if one accepts the applicant's claims that he organised for people to attend church meetings. The fact that the applicant was able to secure a letter signed by senior church officials is not consistent with his claim that the Public Security Bureau has arrested and detained his colleagues associated with the church and their relatives, and that the bureau is now looking for him because of his 'involvement in the church'. 5 On the basis of the foregoing the Tribunal rejected as not credible the appellant's claim that the authorities had arrested 20 of his colleagues who attended a church meeting with him. The Tribunal continued at page 10 : The Tribunal is aware that country reports on China indicate that leaders of 'unregistered churches' are sometimes subject to interrogation and harassment. However, in the present application the Tribunal finds no evidence that the applicant has been subject to any form of persecution. The fact that the leaders of the church appear able to engage in ordinary activities and are able to communicate with the applicant using ordinary means of communication in the country leads the Tribunal to conclude that the applicant has no reasonable grounds to fear persecution because of his association with the Church when he returns to China. 6 The Magistrate rejected the s 424A(1) complaint on the ground that the information to which the Tribunal had regard, namely the 'ordinary means of communication', was information provided by the appellant to the Tribunal and thus excluded from s 424A(1) by sub‑s (3)(b). 7 It appears that what was put to the Magistrate was that the contents of the letter constituted the 'information' for the purposes of the section. On that basis, the complaint was properly disposed of by reference to sub‑s (3)(b). 8 However before me the complaint was put differently. It was said that the 'information' consisted of the inconsistencies the Tribunal found between what the letter disclosed about its signatories' freedom to communicate etc and the appellant's claims. That is not 'information' within s 424A(1). In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] the High Court said: Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word 'information': does not encompass the Tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. This ground of appeal fails. 9 The second ground of appeal is that the Magistrate erred in holding that the Tribunal had properly considered his evidence. The appellant lists evidence relating to the post‑hearing letter that he says the Tribunal had "completely ignored". These items of so called "evidence" were (a) the Tribunal forced him to provide documentary evidence to testify to his membership of the Local Church in China (b) he had to take risks in order to contact the Church leaders seeking the letter (c) as a key member of the Local Church in China he knew how to find the senior Church leaders (d) it is ridiculous for the Tribunal to state that the letter showed that the senior members of the Church were "currently able to live in China" (e) it is ridiculous for the Tribunal to say that "leaders of the church are free and able to communicate with the applicant" (f) it was difficult and dangerous for him to obtain the letter (g) he has been a key member of the Local Church in China which is regarded by the authorities as an anti‑government church, many members of which have been persecuted. 10 There was no occasion for the Tribunal to mention the matters in (b), (c) and (f), because they were irrelevant to its reasoning process and, as the Magistrate said, there was no evidence about them before the Tribunal. In (d), (e) and (g) the appellant is merely disagreeing with the Tribunal's rejection of his claims. It did not "ignore" his evidence. It did not accept it. It quite rationally considered that the letter and the circumstances of its provision were inconsistent with the appellant's claims. 11 The complaint in (a) has no substance. The Tribunal explained that after the appellant had given evidence at the hearing, the Tribunal member said it was surprising that he had not provided any evidence to support his claims of association with any church in Australia or China. It asked him, by a specified date, to provide any further information to support his claim that he is or was a member of a church. This the appellant did, by providing the letter. The Tribunal did not "force" him to provide the evidence from the church leaders. The Magistrate's rejection of this claim is not affected by error. 12 The final piece of evidence that the appellant asserts the Tribunal "intentionally" ignored is "important independent country information" which he says supports his claim. The Magistrate noted that the Tribunal said it was aware of country information that indicated that leaders of unregistered churches were sometimes subject to interrogation and harassment. Her Honour observed that the Tribunal was nevertheless not satisfied that the appellant had a well‑grounded fear of persecution in circumstances where he had not been subject to any persecution in the past, and the church elders were able to communicate with him and engage in ordinary activities. 13 The Magistrate went on to say that the appellant did not provide the Tribunal with any country information. Her Honour said he had every opportunity to provide material to the Tribunal, and it was not a jurisdictional error on its part for it not to have regard to unidentified information the appellant did not give it. 14 Her Honour concluded at [55]: There is nothing on the face of the Tribunal's decision, including the conduct of its review, to suggest that it 'intentionally'ignored any information. Whilst the Tribunal noted that country information indicated that authorities permit Christianity, it proceeded to make its decision in the context of accepting the difficulties faced by leaders of underground churches in the PRC. 15 As her Honour said, ultimately the appellant's claims were rejected because the Tribunal did not accept that his alleged fear arising from his membership of his local church was well‑founded, because it did not believe his main claim that his colleagues and associates in the church had been subject to persecution or that the PSB was looking for him. 16 No error has been shown in the Magistrate's treatment of the claim that the Tribunal ignored relevant evidence. 17 None of the grounds of appeal has been made out, and the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.