SZLCT v Minister for Immigration and Citizenship

The Delegate's Decision 6 The delegate considered those claims and said that a number of factors raised significant doubts as to their credibility and the genuineness of the appellant's claimed fear being based on any Convention reason. The delegate noted that the appellant had claimed to have ceased practising Yi Euan Dao because it was banned, and yet in 2002 he claimed to have begun practising Falun Gong which was also banned at that time. The delegate referred to credibility concerns that it was difficult to accept that someone had stopped practising one religion mainly because it was banned had embraced the practices of another one proscribed by the State. She noted that it was even harder to accept that after experiencing persecution due to his alleged adherence to Falun Gong he would take up yet another non-State sanctioned religion. She said that that cast doubt about the genuineness and commitment to any religion the appellant claimed to have taken up so far. 7 Moreover the delegate found that even if she were to have accepted that the appellant had started practising Christianity, he had provided no details to substantiate the claim that he was unable to practise his latest religion. He had provided no dates or evidence of his adherence to Christianity, such as a baptism certificate or letter of support from a practising priest. She reviewed some country information and observed that she was not prepared to accept as genuine a document in Chinese that the appellant had provided, which was not a certified copy purporting to relate to his release from detention due to his Falun Gong activities. 8 She noted that information in the appellant's protection visa application indicated he lived at the same address for the last eight years. She did not find that consistent with his claim of being forced to leave China on account of his being the victim of harm serious enough to amount to persecution. Likewise his departure from China on a valid Chinese passport in his own name was not consistent with a person fleeing China on account of his fear of persecution. She concluded that the appellant had not provided any information indicating he belonged to a category of persons who would be of interest to authorities if he were returned to China and was thus not satisfied that he was of any such interest. She found that there was not a real chance of him suffering persecution for Convention reasons in the reasonably foreseeable future and therefore she declined his application for a protection visa.

The Hearing in the Tribunal 9 The appellant applied for a review of that decision assisted by a migration adviser, Ms Downing, who was also a lawyer. She assisted the appellant throughout the proceedings before the tribunal. The tribunal invited him to a hearing pursuant to s 425(1) of the Migration Act 1958 (Cth). Ms Downing's firm sent to the tribunal, prior to the hearing, a detailed letter together with supporting documents. The appellant gave evidence at the hearing and was extensively questioned by the tribunal concerning his claims. The tribunal, during the course of its questioning, referred to the fact that the appellant had not raised with the immigration officials at the airport on his arrival anything about the claim of a fear of persecution related to Christianity and had not mentioned that he was a practising Christian. 10 During the course of the hearing the tribunal explored with the appellant his knowledge of what the principles and practice of Falun Gong involved. It suffices to say that, after a considerable period in which the appellant refused to reveal anything about his knowledge, he was given an opportunity to discuss the matter with Ms Downing, following which he professed a willingness to discuss those matters.

The Tribunal's Decision 11 The tribunal formed an adverse view about the appellant's knowledge of Falun Gong on the basis of his oral evidence, finding that he was never a Falun Gong practitioner in China. It noted that if he had practised Falun Gong for the period he claimed and in the manner he claimed, he would have been able to provide more information about basic movements and the verses which accompanied them and that he would have been able to discuss, even in very general terms, the movements, the manner in which they were performed and the verses. It found that the appellant was unable to demonstrate this rudimentary knowledge, although he did have some knowledge of other principles of the faith. 12 Having found that it did not accept that the appellant was a Falun Gong practitioner from 2002 to 2006 as he claimed, it followed that the tribunal did not accept that he had been detained for that reason from March 2006 until June 2006 and that the appellant's evidence about his practice of Falun Gong was neither credible nor truthful. Based on that, it gave no weight to a photograph which he provided to the tribunal evidencing bruising to his body which he allegedly suffered while in detention. Likewise it gave no weight to the document which purported to be a certificate provided to him by authorities in China on his release from detention. 13 The tribunal then said that those findings were relevant to his claims to have been a Christian. It noted that the appellant had told it that after his release from detention the police came to his home and required him to report weekly and that others from the community had harassed him at home. He asserted that these intrusions caused him to go to a friend at the missionary college in the middle or end of July 2006 to hide and that whilst there he came to learn about Christianity, eventually becoming baptised in December 2006. But, the tribunal said that because of its finding in relation to Falun Gong and his claimed detention, it did not accept he was introduced to the Christian faith at an underground Christian college. In the tribunal's view, there was no reason for him to seek the respite at the college he claimed. 14 It considered a letter written in Korean from a pastor, but found that, given the degree of credibility problems with the evidence of the appellant, it could not give any weight to that document, saying: "In light of the fundamental lack of credibility within the [appellant's] evidence, the Tribunal cannot be satisfied of the actual source of the letter or be satisfied that its contents are true." 15 The tribunal found that it did not accept that the appellant had attended an underground Christian college in July 2006 as he claimed, or that he became baptised in December 2006, and it did not accept that he went out from the college to Beijing and elsewhere accompanying a missionary. The tribunal did, however, find that the appellant had demonstrated a sound knowledge of the Christian faith and was able to discuss significant events and displayed knowledge of the Bible. 16 It also accepted that at the then present time the appellant attended Bible study classes in the Villawood Immigration Detention Centre and that he took an active part in the Christian mission run there by the Hillsong Church. It noted that a pastor from the Hillsong Church had told it, in a letter of 1 May 2007, that he understood that the appellant had been a professed Christian in China and had been more recently involved in a four to five week course in Christianity. According to that pastor, the appellant had commenced the second part of that course. Notwithstanding that information, the tribunal said that the question arose whether those actions of the appellant in attending the classes had arisen from a genuine religious belief, or whether they had been taken in bad faith to reinforce his claims. It referred to the obligation of an applicant for review to satisfy it under s 91R(3) of the Act that activities in Australia had not been undertaken for the purposes of strengthening a claim for refugee status. 17 The tribunal found that the appellant was not a practising Christian in China and he had embraced Christianity only since his arrival in Australia and detention in Villawood, after his latest arrival. The tribunal concluded that he was not a practising and baptised Christian in China as he claimed. It pointed out the discrepancies in his account of where he had lived, saying that he claimed to have lived in the same place for eight years until leaving China in 2007, but at the same time to have been unemployed from July 2000 until March 2006 (presumably when he went into detention) and from June 2006 until March 2007. When that information had been put to the appellant, Ms Downing responded that he had provided his home address, because that was fixed, whereas the college situation was not permanent and he had to be ready to move at any time. 18 However, the tribunal was not persuaded by that explanation and preferred to rely on the appellant's own description of where he lived in his application. The tribunal also noted that the immigration officer at Sydney airport had cautioned the appellant at the outset of the interview that if he gave information at a future interview different from what he then gave, that could raise doubts as to the reliability of what he said. The tribunal noted that the certificate purported to have been provided by the underground Christian college said that the appellant had been engaged with the school from 20 November 2006 to now, which was inconsistent with the appellant's evidence to the tribunal at his earlier claim that he had been at the college since July that year. It concluded that: "The [appellant's] evidence about his introduction to and acceptance of the Christian religion in China is unreliable, not creditable and inconsistent with information otherwise provided by him to the department in support of his claim." 19 It said that those inconsistencies had been put to him for comment and it had considered his responses but was not persuaded by them. It did not accept, accordingly, his claim to have been a Christian in China at all. The tribunal then acknowledged that the appellant was attending religious gatherings in Villawood and studying the Christian faith there and that he had demonstrated an understanding of Christian beliefs and practices at the hearing. But it found that he had engaged in conduct related to the study and practice of the Christian religion in order to create a claim for refugee status and, on that basis, in accordance with s 91R(3) of the Act it disregarded those actions in deciding whether he had a well-founded fear of persecution were he to return to China. It can be seen that essentially, the tribunal did not accept the genuineness of the appellant's claims.

The Proceedings in the Federal Magistrates Court 20 The appellant applied to the Federal Magistrates Court for a review of that decision and, after an initial difficulty, was referred to a Refugee Review Tribunal panel advice scheme lawyer, who prepared an amended application. That lawyer did not have the benefit of the transcript of proceedings in the tribunal which became evidence before the trial judge. The amended application asserted that the tribunal committed a jurisdictional error by failing to provide a hearing in accordance with s 425 because it did not identify to the appellant all relevant issues arising in relation to the decision under review. The bases on which that was asserted were that: · in affirming the decision of the delegate, the tribunal had disregarded the appellant's Christian activities pursuant to s 91R(3) but had not identified this as an issue before it; · the tribunal had not identified that motivation to the appellant as being relevant either in writing (under s 424A or otherwise) or orally at the hearing. 21 This last argument was obviously based on SZBEL v Minister for Immigration (2006) 228 CLR 152 at 163 [36]. However, as the trial judge set out in her reasons, at the end of its hearing, if not before, the tribunal made it very clear that the appellant's Christianity was an issue in the following way: "… [A]s I've made clear the issue of whether or not the Christianity has been embraced in Australia for the purpose of enhancing the claim for refugee status is something clearly that I will be addressing." 22 I am of opinion that the tribunal adequately raised the issue of the genuineness of the appellant's conduct in Australia and its relationship to s 91R(3). Ms Downing was a lawyer and a migration agent apparently experienced in the field. What the tribunal said in the passage I have quoted, together with what preceded it in the course of the hearing (including the immediately preceding and much longer exchange set out extensively in the trial judge's decision) alerted Ms Downing at least to this matter being an issue, had she not otherwise appreciated it. 23 Her Honour found that the tribunal clearly raised the matter with the appellant and his adviser and gave them a general invitation to comment further. I am also of opinion that the tribunal fairly raised during the course of the hearing orally the issue of whether the appellant's conduct in Australia had been engaged in for the purposes of s 91R(3) was an issue in its consideration. In that regard the appellant had an opportunity to give evidence and present arguments at the hearing. His adviser was able at that point, had she chosen, to raise the matter and ask for further evidence to be addressed on the point. 24 The overall credibility of the appellant in any event was always a matter that was in issue, based on the delegate's decision and from the course of the proceedings in the tribunal. The procedure that was followed during the course of the tribunal hearing distinguishes it from the application of the principle identified by Buchanan J in SZILQ v Minister for Immigration (2007) 163 FCR 304 at 315-316 [32]-[33]. In my opinion the grounds raised in the amended application fail and were correctly rejected by her Honour. 25 Subsequently the appellant also relied on a further amended application before her Honour, which she set out in her reasons: SZLCT [2008] FMCA 191 at [55]. Those grounds asserted that the appellant had not made a proper application to the Refugee Review Tribunal and could not get a barrister to present his case when he arrived in Australia and he did not have a contact to get legal advice at the moment. 26 The appellant had a lawyer and migration agent, Ms Downing acting for him throughout the proceedings in the tribunal. To that extent, the ground had no factual foundation, quite apart from its inability to reflect a jurisdictional error. 27 The fact that the appellant was not represented by a lawyer at the airport when interviewed again had nothing to do with a jurisdictional error in the way in which the tribunal exercised its jurisdiction. I am unable to see any basis on which that ground could be upheld and I agree with her Honour that it did not disclose any legal basis for review. 28 Her Honour dealt with all other grounds that had been argued before her and rejected them as not disclosing any jurisdictional error. Having read her Honour's reasons I agree with her for the reasons that she gave for coming to those conclusions.

This Appeal 29 The appellant filed a notice of appeal in this court which was not directed to identifying any error made by her Honour but rather attacked the decision of the tribunal. I have permitted that matter to be argued because I consider it to be in the interests of justice. Those grounds were that the tribunal: · misused its findings as to his Falun Gong practice to reject the appellant's claim of adherence to and practice of Christianity which was not assessed objectively or completely by the tribunal; · failed to consider relevant evidence regarding his Christian belief and to give it weight because it had rejected the documents that he provided; · failed to identify to him relevant issues concerning his credibility. 30 The first of these grounds was simply an attack on the credibility-based findings of the tribunal. In my opinion, the tribunal was entitled to reach the conclusions it did in the way it did. There is no basis on which a jurisdictional error could be asserted because the tribunal proceeded in that fashion. Likewise, the second ground is again an attempt to revisit the merits. The tribunal was entitled to form its own view as to whether or not it accepted the appellant's evidence or other evidence he put forward. His account could have been seen by the tribunal, as it appears it was, as being so undermined that it was not then required to give credibility to any further documents he might bring forward to buttress it. The last ground simply repeats the grounds in his amended application below and I reject it for the reasons that I have given. 31 For these reasons I am of opinion that the appeal should be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 12 June 2008 Appellant: Appeared in person

Solicitor for the First Respondent: G Johnson, DLA Phillips Fox