SZJUZ v Minister for Immigration and Citizenship

Federal Court of Australia|2007-10-18|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of Federal Magistrate Turner delivered on 7 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down 1 November 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') of 24 September 2004 to refuse to grant a protection visa to the appellant. A previous decision of the Tribunal dated 12 January 2005 was remitted to the Tribunal by the Federal Magistrates Court on 25 July 2006. This appeal concerns the second Tribunal decision. 2 The appellant, a citizen of the People's Republic of China ('the PRC') claimed to have a well founded fear of persecution because he was a member of a Christian underground church. The appellant claimed that he was a member of a Christian family and that during his childhood his family home was a meeting place for the underground church and that his father was arrested and his mother was forced to join an official church but they pretended to cease religious practice. The appellant alleged that in 1992 he began working for one of the organisers of the underground church and was a leading activist until 1999, and that in 1999 he was subject to investigation and detention by the Public Security Bureau ('the PSB'). The appellant claimed that he continued to help organise secret gatherings of the underground church, and that in 2004 he was informed that he was placed on a black list. The appellant alleged that he fled Fuqing City in March 2004 to live in the country and that during this period the PSB had visited his home with an arrest warrant and his wife was subject to investigation. 3 Upon remittal of the matter, the Tribunal wrote to the appellant on 15 August 2006 inviting the appellant to a hearing to be held on 19 September 2006. The appellant provided a response to hearing invitation indicating he wished to attend the hearing. The appellant attended and was assisted by a Mandarin interpreter. At the hearing the appellant presented a letter from a Pastor of the Chinese Christian Fellowship Centre in Petersham dated 15 September 2006. 4 On 27 September 2006 the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act') inviting the appellant to comment on the discrepancies between the claims made in the protection visa application; the evidence provided at the hearing in 2004; and the evidence presented at the hearing in 2006, and in particular the inconsistencies of the date of his alleged detention. The appellant replied in a letter dated 11 October 2006 stating that at the Tribunal's hearing he was under 'huge pressure', was confused and could not use his own language and as a result made silly mistakes. The appellant also outlined difficulties with the use of an interpreter.

THE DECISION OF THE TRIBUNAL 5 The Tribunal found that the evidence presented by the appellant relating to his alleged arrest and detention was seriously lacking in credibility. As had been pointed out to the appellant in the Tribunal's letter dated 27 September 2006, the appellant claimed in his visa application that he was detained in 1999 and held for about two weeks. Before the Tribunal hearing in 2004, the appellant said that he had been detained for two days then sent to an official church for study. At the Tribunal hearing in 2006 the appellant claimed he was arrested in 1998, but then claimed that such arrest had occurred in 1999. The Tribunal did not accept the explanation provided by the appellant and observed that the appellant was only able to demonstrate a limited understanding of Christianity and was unable to demonstrate a meaningful knowledge of the Bible. The Tribunal formed the view that his attendance at church and involvement in Christianity were superficial and contrived to support his claims for refugee status. 6 The Tribunal rejected the appellant's claims that his family were involved in an underground church and that the appellant's father was arrested for three years. Similarly, as the appellant was unable to provide any meaningful detail concerning his organisation of the underground church, together with the appellant's lack of knowledge of Christianity, the Tribunal rejected his claim that he worked for the underground church. 7 The Tribunal did not accept that the appellant was ever persecuted for reasons of his religion. The Tribunal found the claims of the appellant to be contrived and lacking in credibility and the Tribunal did not accept the appellant would be involved in Christianity, whether official or unofficial if he were to return to the PRC. Accordingly the Tribunal affirmed the decision of the Minister.

HEARING BEFORE THE FEDERAL MAGISTRATE 8 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. Before Turner FM the appellant claimed that the Tribunal committed jurisdictional error as well as procedural error and denied the appellant natural justice. By way of particulars the appellant submitted that the application was not considered properly and fairly; that the Tribunal ignored important evidence from the UNHCR Handbook; that the appellant was under pressure and encountered difficulties at the Tribunal hearing; that the Tribunal ignored important evidence; that there was bias demonstrated in the decision of the Tribunal; that the Tribunal failed to comply with its obligations under ss 424A(1) and 425 of the Act; and the review application was not assessed fairly and properly. 9 Having found no basis for the assertion by the appellant of error on the part of the Tribunal, Turner FM found that the decision of the Tribunal was a privative clause decision within the meaning of s 474 of the Act and dismissed the application for judicial review pursuant to r 44.12(c) of the Federal Magistrates Court Rules 2001 (Cth).

APPEAL TO THIS COURT 10 By Notice of Appeal to this Court the appellant raises two grounds of appeal from the decision of Turner FM, namely that the Federal Magistrate erred in law; and that the Federal Magistrate was wrong in his findings that the Tribunal acted properly in its findings. These grounds of review are particularised as follows: the Tribunal misstated the claims of the appellant; the Tribunal failed to comply with its obligations under s 424A(1) of the Act; the Tribunal failed to comply with its obligation under s 425 of the Act as it did not allow the appellant a chance to give evidence and present arguments in relation to his Application for Review.

Appellant's submissions 11 The appellant provided written submissions which alleged errors by the Tribunal and by the Federal Magistrate. The first submission claimed that the Tribunal's finding relating to his credit relied upon the discrepancy concerning his alleged arrest and detention and that the appellant was only able to provide 'the most limited understanding of Christianity and of the Bible texts…'. The appellant claims that the Tribunal ignored the fact that he was under pressure and could not use his own language directly to communicate with the Tribunal. The appellant claims instead that he was reliant upon an interpreter which caused his thinking to be interrupted. He claims that he was stopped from time to time and that this adversely affected his ability to consider the detail of questions asked of him. He acknowledged that the arrest and detention was a 'central claim' in his application but maintained that owing to strong pressure he made some 'silly mistakes'.

Tribunal's alleged misunderstanding 12 The appellant claimed that the Tribunal failed to consider that the interpreter was unable to interpret the Tribunal's questions correctly or properly, especially in relation to religious terms and concepts, and it was for this reason that he was unable to demonstrate his sound knowledge of Christianity. 13 It is apparent from its decision that the Tribunal referred extensively to the claims of the appellant. Such claims were not confined to 1998 or 1999 but covered the period from 1983 until 2004. Accordingly, the Court is unable to discern any basis for the appellant's assertion that the appellant's claims were unfairly misstated by the Tribunal as alleged. No particulars have been provided of the precise matters relied upon to support such ground and a reading of the Tribunal's decision does not suggest that there was any such misstatement of the appellant's claims as alleged. Accordingly the Court dismisses this ground of appeal.

Alleged breach of s 424A(1) of the Act 14 The appellant claims that the Tribunal failed to comply with s 424A(1) of the Act by not identifying to him the issues that would comprise a reason for its decision. However the letter of 27 September 2006 which had been issued to the appellant by the Tribunal specifically drew the appellant's attention to inconsistencies in the appellant's evidence concerning his claimed detention. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 the Court observed: It is a fundamental principle that where the rules of procedural fairness apply to a decision making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:

… the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished. 15 The Tribunal satisfied the requirement to alert the appellant to its concerns relating to the inconsistencies in his evidence by its letter dated 27 September 2006. 16 Further, there was no obligation on the part of the Tribunal to put to the appellant its conclusions concerning the appellant's religious knowledge or claimed activities. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 the High Court said at [18]: … if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellant's evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". 17 Such principle has been applied in Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 where at [54] Sackville J said: It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s 424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s 424A(1). See also VAF v Minister for immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]; cf Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 at [40]-[44]. 18 The appellant also claimed that the letter provided by the Pastor of a Sydney church had not been provided or given by him and accordingly the Tribunal was obliged pursuant to s 424A(1) of the Act to give him the information. However, in answer to questions in this Court, the appellant acknowledged that he submitted the letter to the Tribunal. As such, it was unnecessary for the Tribunal to provide him with the very material which the appellant had provided for the purposes of the review and the exception to s 424A(1) of the Act provided by s 424A(3)(b) of the Act applies. 19 Accordingly the Court can find no breach of s 424A(1) as claimed.

Alleged breach of s 425 of the Act 20 The appellant also claimed that he was not afforded an opportunity to provide evidence at the Tribunal hearing and that he was frequently interrupted and had difficulty with the interpreter. There is no evidence before the Court to enable it to make such a finding. The obligation rests upon the appellant to provide evidence in support of such allegation if it is to be considered by the Court. In NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21] the Full Court, in considering a challenge to a decision of the Federal Magistrates Court in circumstances where the transcript of the Tribunal hearing was not adduced in evidence said: In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice. 21 No further particulars have been provided in support of the claimed breach of s 425 of the Act and such breach was not referred to by the appellant in oral submissions. Having had regard to the available material, the Court is satisfied that there is no basis for the making of such allegation. 22 For the above reasons, the appeal must be dismissed. 23 The Minister has sought an order for costs in the sum of $3000. Since this is within a reasonable range for such costs the Court will make the order sought. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 18 October 2007 Counsel for the Applicant: The appellant appeared in person

Federal Court Rules 1979(Cth)

Federal Magistrates Court Rules 2001(Cth)

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