SZIWK v Minister for Immigration and Citizenship

Federal Court of Australia|2007-02-21|Before: Nicholson J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate (Scarlett FM) made on 11 October 2006: SZIWK v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1552. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 30 March 2006 and handed down on 20 April 2006. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant a protection (class XA) visa to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) (the Act). 2 When the appeal was called on there was no appearance by or for the appellant. The appeal was called outside the Court, in the area of the Registry and on the ground floor but without succeeding in locating the appellant. Having found in oral reasons that notice of the appeal had been sent to the appellant at the address for service and his residential address on the record, I accepted a motion from the first respondent to proceed with the hearing of the appeal generally, as provided for in O 52 r 38A of the Federal Court Rules. 3 At the conclusion of the hearing orders were made dismissing the appeal. The reasons which follow are the reasons those orders were made.

Appellant's claims 4 The appellant was found to be a citizen of the People's Republic of China (China). On 25 September 2005 the appellant lodged an application for a protection visa. He claimed to have a well-founded fear of persecution on the basis of his religious beliefs. He stated he was a devout Christian who attended religious underground Christian Church gatherings. He also claimed to be a school teacher who organised study groups for his pupils to learn religious propaganda materials. The appellant claimed he first came to the adverse attention of the Public Security Bureau (PSB) in February 2005 and was detained for one month. Nevertheless he said he continued his religious activities but was careful to avoid the attention of the authorities. The appellant claimed that the situation intensified when in August 2005 the police arrested the priest that the appellant had made arrangements with for a special summer camp for the pupils. He claimed he went into hiding and that after he was informed there was an arrest permit for him and that he was dismissed from his teaching post at the school, he found he had to leave for overseas. The appellant left for Australia on a Hong Kong passport in the name of another person.

Tribunal's reasons 5 On 22 December 2005, the appellant made an application for review in the Tribunal. The Tribunal found the appellant was not a truthful or credible witness on a number of relevant aspects of his claims. The Tribunal was prepared to accept the appellant was employed as a primary school teacher. However, it did not accept the appellant was a member of an underground Christian church. The Tribunal stated, amongst other things, that the appellant's evidence was confused and overly generalised, that his explanation of his adoption of Christian beliefs lacked meaningful content and that his knowledge of Christianity was superficial. It formed the view that the appellant had rehearsed a fabricated account of events; in support of which it cited that the appellant became confused when asked questions out of chronology and used generalised language. The Tribunal did not accept the appellant was detained for distributing religious material in February 2005 as he had difficulty explaining the materials and could not provide details of the charges against him. The Tribunal noted the appellant became confused when discussing the summer camp. Consequently, the Tribunal did not accept the appellant was a member of an underground Christian church or was detained or organised the summer camp or was being sought by the police for his religious activities. 6 Although the Tribunal accepted the appellant left on a passport in another person's name, the Tribunal noted there were many reasons for using a Hong Kong passport and an Australian visa in another person's name. Consequently, the Tribunal did not accept the travel documents were obtained to avoid adverse attention of authorities. 7 In relation to the appellant's activities in Australia, the Tribunal accepted the appellant attended church in Sydney but did not accept the appellant would join an underground Christian church on his return to China. The Tribunal was of the view that the appellant's attendance at church in Sydney had been to strengthen his claims. 8 Therefore the Tribunal did not accept the appellant faced a real chance of persecution for reasons of religion.

Federal Magistrate's reasons 9 The appellant filed an application for review in the Federal Magistrates Court on 23 May 2006. Before the Federal Magistrate, the appellant relied on an amended application filed on 24 July 2006 which raised five grounds of review. 10 Scarlett FM considered the grounds raised by the appellant but found no jurisdictional error. The first ground alleged a failure to comply with s 425 of the Act. The appellant claimed that he was seriously ill on the day of the Tribunal hearing and thus was confused, and further, that the interpreter was unable to interpret religious terms. His Honour was of the view that the appellant did not ask the Tribunal for an adjournment due to illness and did not tell the Tribunal he was feeling ill or complain about inadequacies of translation. His Honour found there was no evidence the Tribunal was aware of the difficulties relating to the appellant's ability to give evidence. 11 The second ground asserted the Tribunal did not comply with s 424A(1) of the Act in relation to the appellant's religious knowledge, the independent country information regarding official and unofficial churches, and the appellant's persecution. In relation to these grounds, his Honour found no breach of s 424A(1) of the Act as the particulars in the amended application did not indicate any information for the purposes of s 424A(1). The Tribunal was not required to give details of its thought process, the Tribunal did not refer to country information and its decision was based on credibility which is a finding of fact. The evidence given to the Tribunal fell within the exception under s 424A(3)(b) of the Act. 12 The third ground claimed that the Tribunal applied the wrong test to determine credibility as the Tribunal did not inform the appellant to obtain a certificate from the church he was attending in Australia. The remaining two grounds claimed, respectively that, the Tribunal ignored relevant independent information and did not fairly and carefully assess the application. In relation to these other grounds, his Honour found that credibility is a matter for the administrative decision maker; there was no obligation on the Tribunal to make its own independent inquiries in support of the appellant's claims; there was no evidence the Tribunal was aware of the appellant's communication difficulties; and there was no evidence of bias or lack of good faith.

Grounds of appeal 13 In a notice of appeal filed on 1 November 2006 the appellant, raised grounds that: '1. The learned Federal Magistrate erred in law. 2. The learned Federal Magistrate was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings.' At the hearing of the appeal these were taken as asserting that the relevant underlying question is whether the Tribunal fell into jurisdictional error in deciding to affirm the decision not to grant the appellant a protection visa. That is, the grounds were treated as re-raising the issues before the Federal Magistrate. It is therefore necessary to revisit his Honour's reasoning in a little more detail. 14 In relation to ground 1, the alleged failure to comply with s 425 of the Act, dealing first with the issue of the appellant's alleged illness at the hearing, Scarlett FM noted there is no proper evidentiary basis for the appellant's assertions. The appellant has not provided a transcript of the hearing with a view to substantiating his assertion that his illness substantially hindered his participation at the hearing. The appellant apparently did not ask the Tribunal for an adjournment or advise the Tribunal that he was feeling ill. The passage from Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at 299-300, [36]-[37] indicates that the fact that the Tribunal was unaware of the appellant's illness is not necessarily determinative. What is more significant is that there is no evidence to suggest that the appellant was in such a physical state that he was 'effectively precluded from taking part' in the hearing. To the contrary, the Tribunal's reasons for decision indicate that the appellant did participate actively and extensively in the hearing, including by answering a number of questions. In these circumstances, there was no basis on which it could be said that the Tribunal failed to comply with s 425 because its invitation to the appellant was rendered defective or hollow by the illness of the appellant: cf Kimura v Minister for Immigration and Multicultural Affairs [1997] FCA 955. 15 As to the question of defective translation, the authorities referred to above indicate that in some circumstances a breach of s 425 can arise where the Tribunal invites an applicant to a hearing and the applicant attends but is 'effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate': SCAR 198 ALR at [37]. A breach of s 425 will only arise where the errors in translation relate to matters critical to the presentation of the applicant's case and the errors could be said to have influenced the Tribunal's findings: Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [37]. See also W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788 at [35]. In order for the appellant to make good his ground of appeal, it would have been necessary for the appellant to tender comparative transcripts of the Tribunal hearing to demonstrate as a matter of fact that there were defects in the translation provided by the interpreter. The appellant would also have needed to demonstrate that such defects went to matters of substance, so that it could be said that the appellant was effectively precluded from participating in the hearing and a breach of s 425 occurred. No such evidence was available. The appellant has made unsupported assertions about inadequacies in the translation. There is nothing in the Tribunal's reasons for decision to suggest that problems of translation and communication contributed to the adverse findings made by the Tribunal. The Full Court has noted that allegations against a Tribunal must be supported by proper evidence: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21]. In these circumstances there was no basis to the assertion that the Tribunal breached s 425. 16 In relation to ground 2, the appellant argued in the Federal Magistrates Court that the Tribunal had failed to comply with s 424A of the Act because it failed to provide him with written notice of its intention to have regard to the following matters: (a) the issue of the appellant's religious knowledge and his religious practices both in China and Australia; (b) the differences between official and unofficial churches in China; and (c) the persecution the appellant claimed to have suffered in China. 17 Dealing first with category (b), the ground of review is misconceived because the 'information' is general country information relating to China. Such information, being information which is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member, is not information to which s 424A(3)(a) applies: SZHFC v Minister for Immigration and Multicultural Affairs [2006] FCA 1359 at [15]. 18 As to (a) and (c), the underlying information about the appellant's religious practices and his claims about persecution in China was information which the appellant had provided to the Tribunal as part of his application for review. Such information is not information to which s 424A applies; s 424A(3)(b). In any event, this was not 'information' which the Tribunal relied upon as 'the reason, or a part of the reason, for affirming the decision that is under review'. The Tribunal did attach importance to its findings that there were deficiencies in the information provided by the appellant about his religious practices and his claims of persecution in China, but neither those deficiencies nor the Tribunal's conclusions and thought processes about them constitute 'information' for the purposes of s 424A. 19 In relation to ground 3, the Tribunal's decision turned primarily on an adverse finding as to the appellant's credibility. Such a finding of fact cannot be disturbed unless the appellant can demonstrate that the Tribunal fell into jurisdictional error in its consideration of the credibility issue. It is not the role of the Court on an application for judicial review to revisit the correctness of the finding of credibility on the facts. As was observed by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 at 625: 'A finding of credibility … is the function of the primary decision-maker par excellence'. 20 The authorities indicate that while the Tribunal should adopt a liberal attitude in considering the credibility of an applicant's claims it is not obliged to accept those claims uncritically: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J. In considering the credibility of an applicant's testimony the Tribunal 'will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies'. However, there is no requirement that the Tribunal may only reject an applicant's testimony on credibility grounds where there are no plausible explanations for the delay or inconsistency. Nor is there a rule that a decision-maker must hold a 'positive state of disbelief' before making an adverse credibility assessment in a refugee case: Kopolapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 559 per curiam. 21 As the Tribunal's reasons for decision indicate, the Tribunal member properly identified and applied these principles in assessing the credibility of the appellant. There is no basis to the appellant's assertion that the Tribunal applied the wrong test in determining the question of credibility. 22 In relation to ground 4,the appellant asserted that the Tribunal had erred by ignoring relevant independent country information. This ground of review misconceives the Tribunal's role. As the Full Court made clear in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 the role of the Tribunal is to grant a protection visa if it is satisfied on the material before it that the applicant is a person to whom protection obligations are owed. If the Tribunal is not so satisfied, the Tribunal must reject the application. The Tribunal has the power to obtain information for itself (s 424) but the Tribunal is not under any obligation to obtain information that has not been provided by an applicant but that may be relevant to the application: VSAF FCAFC 73 at [20]-[21]. The appellant's assertion that the Tribunal erred by not having regard to additional country information that may have supported the appellant's claims was rightly rejected by Scarlett FM. 23 The fifth ground contained in the appellant's amended application in the Federal Magistrates Court does not identify any proper basis for alleging jurisdictional error on the part of the Tribunal. As Scarlett FM noted, if the appellant by ground 5 was intending to allege bias or bad faith on the part of the Tribunal, there is no evidentiary basis to the assertion and such an allegation must fail: see, as to bias, SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 and, as to bad faith, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 361 at [43]. If, by ground 5, the appellant is seeking to revisit the merits of the Tribunal this is not a proper ground of review in judicial review proceedings. 24 The appellant has not established any jurisdictional error in the Tribunal decision. Scarlett FM was correct in dismissing the amended application.

Conclusion 25 The appeal was therefore dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Counsel for the First Respondent: S Free

Solicitor for the First Respondent: DLA Phillips Fox

Date of Hearing and Orders Made: 20 February 2007

Date of Publication of Reasons for Judgment: 21 February 2007

Migration Act 1958(Cth)ss 424A, 424A(1), 424A(3)(b), 425

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