SZNWA v Minister for Immigration and Citizenship - [2010] FCA 470 - FCA 2010 case summary — Zoe

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SZNWA v Minister for Immigration and Citizenship

[2010] FCA 470

Federal Court of Australia|2010-05-14|Before: Foster J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2010-05-14

Before

Foster J

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

The appeal be dismissed.
The appellant pay the first respondent's costs of and incidental to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

[2]

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

[3]

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 25 January 2010 (SZNWA v Minister for Immigration [2010] FMCA 21) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 July 2009 and handed down on the same day. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China. She arrived in Australia on 2 November 2008. On 14 November 2008, the appellant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Citizenship (the Department). In that application, the appellant claimed that she had been persecuted in China for practising Christianity. She claimed that she had become a Christian in about July 2006, having been urged to do so by her mother on her mother's death bed. Her mother died in 2005. 3 The appellant claimed that a group of approximately 20 people, being members of an underground Christian church, gathered every Sunday to meet, pray and discuss the teachings of the Bible. She claimed that she had donated money to this underground church. She also claimed that she had been baptised on 29 October 2006. She also claimed that her husband had become a Christian after she had been baptised. 4 The appellant pointed to one particular incident as evidence of the persecution which she had suffered. She claimed that police often patrolled the streets of her village on Sundays to ensure that underground churches were not being conducted. She said that, on 27 July 2008, when her church group had gathered at her home, the police raided her home and questioned the 21 people who were present. She claimed that the police seized the churchgoers' Bibles and took all those who had met at the appellant's home to the local police station for further questioning. The appellant said that she was detained by the police for 15 days for providing a place for illegal gatherings and for practising religion illegally. During that time, she confessed to having attended the gatherings and to having donated money to the underground church in the two years prior to her arrest. The appellant said that, whilst she was detained at this time, she was forced to write repentance statements every day and was deprived of meals and sleep when she refused to do so. The appellant said that, upon her release, she was warned that she would be arrested and imprisoned if she was caught participating in church gatherings again. She said that she was released on 12 August 2008 and that she then fled to Wuhan where she hid with a friend. In her statement forming part of her visa application, the appellant said: One day in September, this friend suggested I flee to New Zealand or Australia to seek refuge, saying there's freedom of religion in those countries. At hearing the news, without any hesitation, I appointed an agent to apply for a visa for me. When I called to tell my husband my plan, he encouraged me to do so. 5 The appellant obtained a visa for entry to New Zealand and travelled there as part of a tour group. She subsequently travelled to Australia as part of the same tour group. She left that group whilst in Australia and found accommodation with and obtained assistance from a local resident. 6 The appellant's passport had been issued in her own name. It was issued on 27 June 2008 which was one month before the police raid which featured so prominently in the statement which she furnished to the Department as part of her application for a protection visa. 7 The delegate refused the appellant's application for a protection visa on 12 February 2009. On 4 March 2009, the appellant applied to the Tribunal for a review of that decision.

[16]

v. That it did not believe that the Applicant fled to Wuhan. 14 The appellant also contended before the Federal Magistrate that the Tribunal had acted unreasonably by failing to make enquiries or by failing to seek readily available information regarding an issue that was of critical importance to the review. In amplification of this contention, the appellant argued that the Tribunal should have taken steps to ensure that the penalty notice issued to the appellant in China in respect of her organising of gatherings and which she had mentioned to the Tribunal was made available to the Tribunal. 15 In his Reasons (the Federal Magistrate's Reasons) the Federal Magistrate rejected the first ground of review on the basis that a fair reading of the transcript of the hearing before the Tribunal demonstrated that the Tribunal's statements and questions had sufficiently indicated to the appellant that everything the appellant said regarding what had occurred in China was in issue (see [105] of the Federal Magistrate's Reasons). The Federal Magistrate held that the rejection of the appellant's account that she had suffered harm in China as a consequence of her religious practice was a live issue as a result of the delegate's decision (see [109] of the Federal Magistrate's Reasons). The Federal Magistrate found that the Tribunal had given the appellant a fair opportunity to expand upon all relevant factual aspects of her claim and that she had been fairly put on notice that the entirety of her account of her claimed religious practice and subsequent detention, ill-treatment, release and consequent flight were all in issue (see [109] of the Federal Magistrate's Reasons). 16 The Federal Magistrate also dismissed the second ground of review raised before him. He held that, in the circumstances of the present case, the Tribunal was not obliged to pursue the appellant's migration agent for the penalty notice. Before the Federal Magistrate, the appellant gave evidence that she believed that the Tribunal had had a copy of the penalty notice and that she had not understood from the questions asked of her by the Tribunal member that the Tribunal did not have a copy of that penalty notice. She said that she had only become aware of the fact that the Tribunal did not have the penalty notice when the Tribunal's decision was subsequently explained to her. The Federal Magistrate did not accept the appellant's evidence before him to the effect that she had not understood that the Tribunal did not have the penalty notice (see [144] and [147] of the Federal Magistrate's Reasons). The Federal Magistrate gave detailed reasons for these conclusions at [140]-[157]. Ultimately, at [158]-[164] he said: 158 In all the circumstances, I cannot accept that the applicant did not understand that the Tribunal did not have the Penalty Notice. I say this particularly given what is clearly set out in the transcript of the Tribunal hearing.

[42]

35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 26 In the present case, the delegate held that she was not satisfied that the appellant had been or would be persecuted by the Chinese authorities for religious reasons. In support of that conclusion, she said that there were several factors that raised doubts as to the credibility of the appellant's claims and the genuineness of her fear under Convention related grounds. She then identified and discussed those factors. The delegate noted that the appellant had given no evidence or indication that she had ever encountered any significant difficulties in China on account of her religion. She described the appellant's statement at interview as vague and lacking detail. She said that the appellant contradicted herself on many points throughout the interview which had taken place on 15 January 2009. She said that the appellant was not able to substantiate her claim that she had attended an underground church in China and had failed to prove that she had done so. A similar position obtained in relation to the alleged detention. The delegate also referred to credibility concerns which she had in relation to the means by which and the circumstances in which the appellant had left China and travelled to New Zealand and then to Australia. The delegate discussed the difficulties which she had with that topic. The delegate noted the fact that the appellant had left China travelling on a passport in her own name. She took the view that the appellant's relatively easy and lawful departure from China was a strong indicator that her claimed detention and involvement in an underground Christian church was unlikely to have been known to the Chinese authorities. The delegate described the appellant's claims as "flimsy and unsubstantiated". The delegate also held that the appellant could safely relocate in China. 27 The delegate's decision made clear that everything which the appellant was claiming had been doubted by the delegate and was thus going to be in issue before the Tribunal. 28 Further, I consider that the Tribunal did fairly indicate to the appellant during the Tribunal hearing that it had doubts about her version of events and that, in particular, the matters relied upon ultimately by the Tribunal at [56]-[57] of the Tribunal's Reasons as important matters were, with the exception perhaps of the escape to Wuhan, fairly notified to the appellant. 29 Towards the end of the Tribunal hearing, the Tribunal member asked a number of questions addressing the credibility of the appellant's claims to have attended church gatherings. At the end of those questions, the following questions were asked and the following answers were given: Q452 Mmm. O.K. The other great concern I have is that you said that Preacher Tien had been arrested four times. You see, if the authorities were so against you having these gatherings, I am quite sure they would have been watching Preacher Tien, and as a consequence, you would not have been able to have had all those gatherings that you say you had without interference from the authorities.

[44]

A(I) Yeah. 30 The passage which I have extracted at [29] above and the questions leading up to it made it clear to the appellant that the Tribunal had doubts about her claims to have attended church gatherings and, in particular, about the gathering of 20 people at her home which had been the subject of particular claims made on her part. 31 The Tribunal member asked specific questions about the penalty notice. The tone and tenor of those questions made clear to the appellant that her story about having been given such a notice was well and truly under scrutiny. The Tribunal member asked why the penalty notice had not been provided to the Tribunal. This series of questions and answers made clear to the appellant that the failure of the appellant to ensure that the penalty notice was provided to the Tribunal may be regarded by the Tribunal as a significant matter going to her credibility. 32 The questions to which I have already referred, coupled with other questions directed to her alleged practice of Christianity in China, must have alerted the appellant that her claim to have practised Christianity in China was being doubted by the Tribunal. 33 In the end, I have come to the firm conclusion that both the delegate's reasons and the Tribunal's questions during the Tribunal hearing sufficiently indicated to the appellant in the circumstances of the present case that everything she said in support of her application was in issue. The Tribunal also asked the appellant to expand upon all of the matters forming part of the particulars to Ground 1 with the exception of her flight to Wuhan (SZBEL 228 CLR 152 at [47]-[48]). At its highest, the escape to Wuhan was just a factual matter which was considered as something which informed the Tribunal's consideration of the issues. The appellant's claim that she practised Christianity in China and her claim that she had been persecuted for it by the authorities were the issues before the Tribunal. The flight to Wuhan was, in any event, a late element in the appellant's chronological account, the acceptance of which must logically depend upon the Tribunal's accepting earlier elements of that account. Here, those elements were not accepted either by the delegate or by the Tribunal. It was, therefore, not necessary for the Tribunal to alert the appellant specifically to the possibility that the Tribunal might not accept her claim that she fled to Wuhan for the reasons which she gave (Minister for Immigration and Citizenship v SZJGY [2008] FCAFC 87 at [11]-[12]). 34 The submissions made on behalf of the first respondent are correct and I accept them. 35 Accordingly, for the reasons which I have given, I reject Ground 1.

[45]

Ground 2: Unreasonable Failure to Make Enquiries 36 The appellant claimed that her husband had transmitted by facsimile transmission to her migration agent a copy of the penalty notice about which she had given evidence. The appellant did not produce the penalty notice to the Tribunal. The Tribunal member made clear to the appellant during the Tribunal hearing that the Tribunal did not have a copy of the penalty notice. It was plainly within the power and control of the appellant to procure the penalty notice, have it translated and present the translation with the original penalty notice to the Tribunal. This was not done. No explanation as to why this was not done was ever offered to the Tribunal. 37 The appellant did not seek an adjournment of the Tribunal hearing in order to procure the penalty notice. 38 Yet, it was submitted on behalf of the appellant, that the Tribunal should have either contacted the appellant's migration agent or granted a short adjournment to the appellant so that she could contact her agent and obtain a copy of the penalty notice. It was also submitted that the Tribunal perhaps should have made enquiries with its own Registry to see whether a copy of the penalty notice had been lodged but had not been connected up to the Tribunal's file. 39 The Federal Magistrate held that there was no duty to enquire in the various ways asserted by the appellant. At [139] of his Reasons, the Federal Magistrate said: In any event, in my view, in the circumstances it is not necessary to resolve the degree to which SZIAI may be said to "overrule" Le, or otherwise. This is because the relevant circumstances of this case do not reveal even the limited circumstances on which the proposition in Le is based, or the "some circumstances" in SZIAI which could supply a sufficient link to the outcome such as to constitute a failure to review. 40 I agree with the Federal Magistrate that there was no duty on the Tribunal in the circumstances of the present case to do any of the things which the appellant now asserts the Tribunal should have done. The relevant principles are laid down by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] and [52]. 41 It was not unreasonable for the Tribunal to proceed upon the basis that it was a matter for the appellant as to whether or not the penalty notice would be provided to the Tribunal. As was submitted on behalf of the first respondent, the Tribunal can hardly be expected to hijack the task of running the appellant's case for her by making enquiries of the appellant's migration agent or taking any of the steps which the appellant now asserts should have been taken. There would usually be good reason for the Tribunal not to go down that path. It is for the appellant to provide whatever evidence she wishes in support of her claims (Abebe v Commonwealth (1999) 197 CLR 510 at [187]). In the circumstances of the present case, the Tribunal had no obligation to take steps to make out the appellant's case for her if she was unwilling to take up the opportunity to do so herself by presenting the penalty notice to the Tribunal (Luu v Renevier (1989) 91 ALR 39 at 45; see also Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [35] per Keane CJ and at [49] per Emmett J). Further, the appellant apparently made no effort to seek to bring the penalty notice to the attention of the Tribunal after the Tribunal hearing. 42 For the reasons which I have explained, I reject Ground 2.

SZNWA v Minister for Immigration and Citizenship

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