SZITN v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China (China) who arrived in Australia on 19 July 2005. He lodged an application for a protection visa under the Migration Act 1958 (Cth) (the Act) with the Department of Immigration and Multicultural Affairs on 1 August 2005. The appellant claimed to have a well‑founded fear of persecution due to his membership of the Shouters or Hui Fu Hui, an underground Christian Church in China. 2 In a written statement accompanying his visa application the appellant claimed that in 2003 nine policemen had broken up a meeting of his church group and had confiscated bibles, poetry and other publications. The appellant said that two members of the church group were arrested and accused of disseminating "the religion", and that the police threatened to arrest others if further meetings were held. After that, meetings of the church group continued to be held in different secret locations. The appellant said he became the "main deacon of ecclesiae" within the church group. The appellant went on to say that, notwithstanding their efforts to keep their meetings secret, on 12 May 2005 police had arrived at a meeting of the church group and tried to arrest those present. Further, the appellant said that five policemen broke into his home on 17 May 2005 intending to arrest him. He was not there at the time. The appellant said that he could not thereafter return to his house because he feared being arrested. He subsequently left China for Australia. The appellant stated that since his departure from China, his family has told him that he would be arrested and imprisoned should he return to China. 3 On 17 October 2005 a delegate of the first respondent refused the application for a protection visa. The delegate made adverse credibility findings in respect of the appellant. On 23 November 2005 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate's decision. The decision of the Tribunal 4 The appellant and his migration agent attended the hearing of the Tribunal on 27 February 2006. The appellant gave evidence at the hearing. At the conclusion of the hearing, the appellant's migration agent requested that she have an opportunity to provide the Tribunal with a post‑hearing submission. It was agreed that any such submission be received by 6 March 2006, failing which the Tribunal would proceed to make its decision on the materials then before it. Under cover of a letter from his migration agent dated 6 March 2006, the appellant provided the Tribunal with a further statement and a copy of part of the decision made by the delegate. The covering letter stated "for your continue to process his case and make a decision, [the appellant] would like to proved another statement to you as requested" (sic). 5 In the enclosed statement, the appellant, after having referred specifically to the proceeding before the delegate and the adverse credibility findings made by him, said: I have to emphasize that all the information I provided in my previous statements is true and I told what I really experienced in my life. I know that in China if I persist in my religious belief I could never have my peaceful life and I would be arrested, beaten, tortured, and jailed like other brothers and sisters. There is evidence to prove what I said. 6 The Tribunal rejected the appellant's application for review and affirmed the delegate's decision. In the course of its reasons, the Tribunal referred on a number of occasions to the statements made in the written statement accompanying the appellant's visa application, as well as to the evidence that the appellant gave before the Tribunal. 7 The Tribunal found that the appellant had a sparse knowledge of Christianity and that this was at odds with his claim that he was a "main deacon of ecclesiae" within the church group. The Tribunal could not, therefore, be satisfied that the appellant was a member of a Christian Church in China. Further, the Tribunal stated that in his evidence at the hearing, the appellant had said that the police had broken up a church meeting at his home. The Tribunal observed that he had failed to make such a claim in his original visa application. 8 The Tribunal also referred to a discrepancy in the appellant's visa application and his evidence as to the events of 17 May 2005. In his visa application he said that on that day five policemen broke in to his home and tried to arrest him, but in evidence he said nine policemen had gone to another church person's place to arrest people. 9 The Tribunal was not satisfied that the appellant had been arrested, or threatened with arrest, or that he had ever come to the adverse attention of the police in China because of his religious beliefs or practices. The Federal Magistrate 10 In his amended application for judicial review in the Federal Magistrates Court, the appellant alleged that the Tribunal fell into jurisdictional error by relying in its reasons on inconsistent statements he made in his written statement which formed part of his visa application ‑ without providing the appellant with particulars in writing of that information. 11 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, found that the appellant "republished by reference and reliance, and otherwise adopted the statement given in support of the visa application in its entirety by the letter and statement of 6 March 2006; and, in the absence of any other statement, he 'gave' the information to the Tribunal during the hearing by relying upon it as 'correct' ". 12 The Federal Magistrate held that the inconsistent statement in the visa application, referred to by the Tribunal in its reasons, came within the exemption provided by s 424A(3)(b) of the Act. Accordingly, there was no breach of s 424A of the Act. The appeal 13 The notice of appeal comprises the following grounds: