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[2010] FCA 840
Federal Court of Australia
2010-08-10
Bromberg J
Original judgment source is linked above.
introduction 1 This is an appeal from a judgment of the Federal Magistrates Court handed down on 12 May 2010: SZODC v Minister for Immigration & Citizenship & Anor [2010] FMCA 326. For the reasons which follow I have determined to dismiss the appeal.
background 2 The appellant is a citizen of the People's Republic of China. He arrived in Australia with his son on 14 April 2008 and they both applied to the Department of Immigration and Citizenship for protection (class XA) visas on 24 July 2009. The application was refused by a delegate of the Minister on 30 September 2009, and on 26 October 2009 the appellant and his son applied for review of that decision by the Refugee Review Tribunal ("the Tribunal").
The decision of the Refugee Review Tribunal 3 Both the appellant and his son attended a hearing of the Tribunal on 10 December 2009 and put their claims to the Tribunal. These claims related to the conversion of the appellant and his wife to Christianity, the use of premises owned by their business to conduct illegal religious gatherings, and the arrest and detention of the wife by Chinese authorities when the religious gatherings were discovered. 4 The appellant claimed that his wife became a Christian in May 2003 and that he also became a Christian in 2007, when he began to participate in religious gatherings in their home which his wife was organising. He claimed that he and his wife had a business which sold construction materials through a retail outlet and a warehouse, and that after he left China with his son to come to Australia so his son could study here, his wife cleared out the warehouse and used it as an illegal church. 5 The appellant claimed that in July 2009, when he and his son were preparing to return to China, he received information from his father that his wife had been caught and that the police had raided the warehouse and a number of people, including his wife, had been arrested. The appellant said he was told that his wife was tortured and that she had told the authorities that her husband was responsible for the illegal church gatherings. The appellant stated that his father told him that on 10 July 2009 his wife was sent to a labour camp for three months. He was told that, because of what his wife had said to the authorities, it would be dangerous for him and the son to return. The appellant stated that since he had been in Australia he had been a regular attendant at church. 6 Throughout the decision record, the Tribunal points to significant inconsistencies between the evidence of the father and the son. The most notable inconsistencies relate to when and how each of them became aware of the appellant's wife's purported arrest and detention, and the regularity and ritual of the religious gatherings in the matrimonial home (of which the son appeared to have very little knowledge). There are also internal inconsistencies in the evidence of the appellant and the evidence of his son on those and other issues. 7 The Tribunal also found that the appellant's responses indicated to the Tribunal that his knowledge of Christianity was scant even though he claimed to have been reading the bible regularly and practising as a Christian for at least two years. 8 The Tribunal concluded that it did not consider the appellant to be a credible witness. It did not believe that his wife had been arrested for running a local church. It was also not satisfied that the wife was, in fact, a Christian. It did not accept that the appellant was a Christian and it disregarded the appellant's churchgoing and practice of Christianity within Australia pursuant to the provisions of s 91R(3) of the Migration Act 1958 (Cth), determining that he had undertaken those activities in order to bolster his claims for a protection visa. 9 The Tribunal was not satisfied that, if the appellant returned to China, he would be persecuted by the authorities for reason of his religious views and, as such, found that the appellant was not a person to whom Australia owed protection obligations.
The decision of the Federal Magistrates Court 10 By his application to the Federal Magistrates Court, the appellant raised the following grounds: (a) RRT considered my case unfairly. They doubt my claim without substantive evidence; (b) Procedural Fairness has been denied by RRT; and (c) RRT did not consider my situation in China. I will be put in jail if I go back. 11 By his decision of 5 May 2010, the learned Federal Magistrate dismissed the appellant's application. His Honour found that: (a) in relation to the first ground of review, the Tribunal was not required to act as a contradictor. It was the appellant's responsibility to satisfy the Tribunal that he was a person to whom Australia owes protection obligations; (b) the second ground of review is defeated by s 422B of the Act and the absence of any particulars of the claimed denial of procedural fairness; and (c) the third ground of review cannot be made out because the Tribunal considered the appellant's claimed situation at length.
appeal to the federal court 12 By his notice of appeal, the appellant raises the following grounds: (a) Refugee Review Tribunal had bias against me and did not make fair decision for my application; (b) The Federal Magistrate made an error of law: and (c) To have my matter re-heard and determined according to law. 13 The third ground is a claim for relief and is not a ground of appeal. The second ground agitated before this Court is not particularised and fails to identify the error of law said to have been made by the Federal Magistrate. No further particulars of it were given at the hearing and, in the circumstances, this ground can be of no assistance to the appellant. 14 The first ground alleges that the Tribunal was biased and that it did not make a fair decision. The respondent asserts that, in relation to this ground, the appellant seeks to raise a ground that was not raised before the Federal Magistrates Court. Whether or not that is so and whether or not leave to raise a new ground ought to be given are matters that I do not need to determine, as I have come to the view that, even if leave were granted, the appellant would fail. 15 The appellant has not provided any particulars in support of the claim of bias. There is no allegation of actual bias. The transcript of the hearing before the Tribunal has not been tendered. I have, however, reviewed the decision of the Tribunal. There is nothing in the material before me that would suggest that a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application before it: Re Refugee Review Tribunal; ex parte H [2001] HCA 28 at [27]-[32]. 16 Insofar as the first ground agitated asserts that the Tribunal did not make a fair decision in relation to the appellant's application, it is evident that the appellant seeks no more than a merits review, which it is not open for either the Federal Magistrates Court or this Court to undertake: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 17 For the sake of completeness, I will proceed on the basis that the appellant continues to agitate the grounds that were agitated before the Federal Magistrates Court. 18 In relation to the first ground agitated before the Federal Magistrate, I am not satisfied that the Federal Magistrate erred. In relation to that ground, the appellant argued that his case was not considered fairly by the Tribunal because the Tribunal doubted his claim "without substantive evidence". A fair reading of the Tribunal's decision shows that the appellant's claim failed because the appellant was not believed in relation to vital aspects of his evidence. That disbelief was based on evidence including significant inconsistencies in the evidence of the appellant and between the evidence of the appellant and that of his son. By this ground, the appellant suggests that the Tribunal should not have doubted his claim without having first obtained its own evidence which refuted the appellant's claims. I agree with the learned Federal Magistrate that the Tribunal has no such obligation. 19 As to the second ground before the Federal Magistrate, having examined the Tribunal's decision and the requirements of s 442B of the Migration Act, I am unable to identify any denial of procedural fairness. Accordingly, I find no error in the decision of the learned Federal Magistrate in relation to this ground. 20 Finally, the appellant argued in the Federal Magistrates Court that the Tribunal did not consider his situation in China. As the Tribunal's decision reveals, the Tribunal considered the appellant's situation at length. I agree with the Federal Magistrate's conclusion on that issue and find no error in his approach. 21 Accordingly, the appeal will be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.
SZODC
Minister for Immigration and Citizenship