SZNIC v Minister for Immigration & Citizenship

Federal Court of Australia|2009-11-18|Before: Gilmour J

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate of 13 August 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") delivered on 20 February 2009. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

Background 2 The appellant, a citizen of China, was born in Fujian Province on 28 November 1964. He lived in that Province during a ten year period prior to his arrival in Australia on 25 February 2008. He came to Australia on a student guardian visa to visit his son who was studying here at that time. 3 On 1 August 2008 the appellant lodged an application for a protection visa (Class XA) with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 29 October 2008, and notified the appellant by letter dated 30 October 2008. 4 On 26 November 2008 the appellant applied to the Tribunal for a review of that decision. 5 The appellant attended a hearing on 6 February 2009 and gave oral evidence to the Tribunal. He claimed that he became a Christian some time between 1984 and the end of 1990. In 1990 he joined an underground church which met every week in secret as it was unlawful. There, he claimed, they discussed Christianity and studied "The Book of New Evangelicals". He stated that his grandmother and his mother attended the same group. He claimed that, in 1994, he was detained and questioned for approximately four months along with eleven others from his church and that the police confiscated Christian material including a 'gospel book'. He claimed that he decided to leave China because of this mistreatment as a result of which he feared persecution because of his Christian religion. His written statement which was before the Tribunal made no mention of whether he had practised Christianity in China following his alleged detention in 1994. 6 The appellant also claimed that he had attended church in Lidcombe every week or fortnight since he had arrived in Australia.

the tribunal decision 7 The Tribunal made its decision on 20 February 2009, affirming the decision of the delegate not to grant the appellant a protection (Class XA) visa. The Tribunal found that the appellant was not a credible witness and consequently rejected all of his material claims. Although he told the Tribunal that he thought he joined his Christian group some time between 1984 and 1990. In his protection visa application he stated that he joined at the end of 1990. 8 The Tribunal did not accept that the appellant was, or had ever been, a Christian, nor his claims about his Christian beliefs and practices in China or in Australia nor that he had been arrested and detained as he claimed. In so concluding the Tribunal had regard to the appellant's limited knowledge and understanding of Christianity against his claim to have been a Christian for more than 20 years. 9 In particular the Tribunal found that he: (a) did not appear to understand the notion of baptism and that as he admitted,he had not been baptised (b) was unable to state any details about the meaning of Easter. He said Jesus was crucified but he did not know why (c) had not heard of the Holy Trinity (d) was unable to name any of the Apostles, but referred to Jesus (e) could not name the 'gospel book' he said had been taken by the police at the time of his alleged arrest. 10 When the Tribunal asked about the content of the Bible, the appellant said that he had seldom read it since his arrest in 1994 and had forgotten about it. He was asked what was his favourite book in the Bible. His answer was to say that he wished to be safe, healthy and to be a good person. He also said that in China after 2000 he had been too busy with work and other matters to study Christianity a great deal or to attend Church. 11 The Tribunal observed that the appellant was unable to describe "The Book of New Evangelicals" referred to in his protection visa application and which he claimed to have studied every week. When asked about its content and whether he could remember any stories from it he said he had forgotten except to say that it was about Jesus Christ and the Christian faith. He said he had not read it since 2000. Searches of "Country Information" and the internet did not provide references to any such book. 12 The Tribunal noted that the appellant did not know the difference between the official and underground churches in China and did not know whether the church he said that he attended was one or the other. The Tribunal observed that his mother and grandmother still attended an unregistered Christian group in Fujian Province and found that this was consistent with the country information which stated that the local authorities in that Province were quite tolerant of unregistered churches, and that thousands of people attended such churches without experiencing any difficulties. 13 The Tribunal rejected the appellant's claim that he had attended church in Lidcombe since coming to Australia as he was unable to tell the Tribunal anything about this church, including the name of the church or its pastor. Rather, the Tribunal concluded that the appellant had come to Australia to spend time with his son and not because of a fear of persecution as claimed. 14 The Tribunal was not satisfied that the appellant had a well-founded fear of persecution in the foreseeable future for any of the Convention reasons, and consequently was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol. The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection (Class XA) visa.

PROCEEDINGS in THE FEDERAL MAGISTRATES COURT 15 On 20 March 2009 the appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. The sole ground of the application was: 1. The RRT decision was affected by jurisdictional error in that it failed to consider the applicant's religious practice in Australia. The applicant claims before the Tribunal, that he had been attending a church in Lidcombe regularly. If he returns to China, he will not be able to continue his religious practice. 16 The Federal Magistrate found no jurisdictional error in the decision of the Tribunal and dismissed the application.

the present APPEAL 17 The appellant filed a notice of appeal on 3 September 2009. The only ground of appeal was that: 1. The Federal Magistrate failed to consider the applicant's claims that the RRT decision was affected by jurisdictional error in that it failed to consider the applicant's church attendance in Sydney. 18 The appellant particularised the ground of appeal in the following terms: Particulars: The RRT decision was affected by jurisdictional error in that it failed to consider the applicant's religious practice in Australia. The applicant claims before the Tribunal, that he had been attending a church in Lidcombe regularly. If he returns to China, he will not be able to continue his religious practice. 19 The ground of appeal, in substance, mirrors the ground raised below. 20 There is no appealable error exposed in his Honour's reasons. The question of the appellant's claim to have practised Christianity within Australia was considered and determined by both the Tribunal and the Court below. It concerned a finding of fact by the Tribunal which was clearly open to it to make. It is apparent from the Tribunal's reasons at [63] that it had considered this particular matter and came to the conclusion that it "(was) not satisfied that the applicant attended any Christian church since coming to Australia". 21 His Honour correctly concluded that the appellant's contention was merely a claim for impermissible merits review. 22 Furthermore his Honour observed at [5] that the form of questioning carried out by the Tribunal was consistent with that approved of by the Full Bench in WALT v Minister for Immigration [2007] FCAFC 2 which indicated that the Tribunal could explore a person's religion to determine whether his claim is genuine. 23 The appellant, who appeared before me in person together with a Mandarin speaking interpreter submitted that the Tribunal should have believed that he was a Christian; that China had nothing to offer him; that he was divorced and that he wanted to remain in Australia to be with his son. 24 The Tribunal did not accept the appellant's claims and in particular his claims to have been and to be a Christian based on its finding that he was not a credible witness. The Tribunal's reasoning based on credibility of the appellant's testimony and consistency with country information was clearly within its jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[65]. In any event no jurisdictional error arises merely from making a wrong finding of fact: Abede v Commonwealth (1999) 197 CLR 510 at [137]. However, as I have said, the findings of fact were well open to the Tribunal.

conclusion 25 No jurisdictional error has been established by the appellant nor can I discern any for myself. Accordingly, the appeal should be 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 Gilmour.

Associate: Dated: 18 November 2009 Counsel for the Appellant: The Appellant represented himself

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