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[2011] FCA 1246
Federal Court of Australia
2011-11-03
Katzmann J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 A citizen of another country with a well-founded fear of persecution on one of the grounds contained in Article 1A of the 1951 Convention Relating to the Status of Refugees, (as amended by the 1967 Protocol) (together "the Convention") will qualify for a protection visa if certain other requirements set out in the Migration Act 1958 (Cth) ("the Act") and Regulations are satisfied. (See ss 36(2)(a) and 91R of the Act and Schedule 2 of the Regulations.) Religion is one of those grounds. 2 The appellant claims to be so qualified. He says he and his family were threatened for Christian religious practices in his country of citizenship, the People's Republic of China. He maintains that he is afraid to return to China. He left China using his own passport but entered Australia in January 2009 using a false passport and nearly 20 months later applied to the first respondent (the Minister) for a protection visa. In a statement attached to his application he claimed, amongst other things, to attend underground family gatherings where he prayed, sang psalms and studied the Bible. On one occasion in October 2008 he said he attended a gathering at the home of a "brother" in his village when it was raided by police who confiscated the Bibles of those in attendance and took all the attendees to the police station where they were detained for 24 hours. He said that during the detention police tried to force him to repent and, when he refused, he was beaten. He said he was visited the following week by a police officer who told his family that if they were caught attending any more such gatherings they would be sent to a detention centre and imprisoned. Consequently, he stated, arrangements were made for him to leave China for fear that he would be persecuted again. 3 After an interview with a delegate of the Minister, his application was rejected. The appellant then sought a review of that decision by the second respondent (the tribunal) but the tribunal affirmed the delegate's decision. It considered his knowledge about Christianity vague. It noted discrepancies between his evidence, what he said in the statement attached to his visa application and what he told the delegate. It was also troubled, amongst other things, by the delay in applying for a protection visa. It raised its concerns with the appellant but was unimpressed with his explanations. It described him as "a vague and, at times, unresponsive witness". It was particularly struck by an account of significant police interest in him and his family after the incidents in October 2008, which he had not mentioned in his statement or related to the delegate. It considered it was inconceivable that if his account were true he would not have mentioned these events before and found that the claim was a fabrication. It concluded that the appellant was an untruthful witness and the account upon which he based his refugee claim false. It decided that he was not a Christian and had not practised Christianity in China. For this reason it could not be satisfied that he would suffer persecution for a Convention reason upon returning to China. 4 The appellant then applied to the Federal Magistrates Court to have the decision quashed and the tribunal reconsider his case, but the application was dismissed for want of jurisdictional error. Absent jurisdictional error, the federal magistrate had no power to set aside the tribunal decision. This is the effect of ss 474 and 476 of the Act. See also Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 5 This is an appeal from the federal magistrate's orders. 6 Appeals from the Federal Magistrates Court are in the nature of a rehearing, but error must still be shown: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 7 Two grounds of appeal are pleaded: (1) The tribunal erred by denying the appellant natural justice. (2) The tribunal made an unfair statement.
Was the appellant denied natural justice in the tribunal? 8 The claim that the appellant was denied natural justice was particularised in the grounds of appeal in this way: [The tribunal] said I can attend registered church in China for my Christianity. This statement totally ignored my personal situation and the practical circumstance of religion freedom in China currently. For my truthful belief, there is no alternative way to practice it but taking underground church meetings if I return back to China. Consequently, I am under the serious risk of persecution, which was ignored by the RRT. 9 I have been unable to find any reference to such a statement in the tribunal's decision record, which is the only material that was before the Court touching upon what happened at the tribunal. Indeed, it is highly unlikely the tribunal would have made such a statement since it said it was satisfied that the appellant was not a Christian and had no commitment to Christianity. It is possible that the appellant was confused. Unlike the tribunal, the Minister's delegate accepted that the appellant was a practising Christian and he noted that the appellant actually said to him that he had no objection to attending a registered church although he had not done so. The federal magistrate referred to this at [4] of his s reasons. 10 In any case, this is not a complaint about a denial of natural justice. Rather, it is a complaint about the fact finding, not amenable to review. 11 This claim was put a little differently in the Court below. 12 The second ground of the application pleaded that the tribunal discounted the risk of persecution by stating that he could practise his Christianity in a registered church. It went on to contend that this was a "judicial error" because the tribunal did not apply "the well-founded fear test as per [Minister for Immigration and Ethnic Affairs] v Guo Wei [Rong] & Anor (1997) 191 CLR [559]". 13 The federal magistrate said he was unable to identify any failure to apply the test in Guo. His Honour observed, citing Guo, that it was open to the tribunal, even necessary, for it to make findings about alleged past events in order to assist in its consideration of what will happen in the future. He concluded that there was no error in determining the appellant's claim by reference to his claimed history. He did not refer to the appellant's assertion that the tribunal stated that he could practise his Christianity in a registered church but, as I indicated earlier, there appears to be no foundation in fact for it. 14 The third ground of his application contended that the tribunal did not consider his application fairly, finding that he was not a reliable witness because he did not provide relevant and significant evidence to the Department when he did so at the tribunal hearing and when the tribunal did not provide "reasoning to this finding". The application went on to record (without alteration): Hence, it gives grounds to believe that the RRT did not weigh by evidence and taking my evidence into consideration. Therefore RRT has denied my procedural fairness. 15 The federal magistrate said he had some difficulty understanding this ground. His Honour rejected the contention that the tribunal did not provide reasoning. He observed that the ground appeared to challenge the tribunal's adverse conclusions on credibility, which were based on the omission of significant claims both from the visa application and the interview with the delegate. He found that the reasoning was open to the tribunal on the evidence before it and provided a rational basis for the assessment of the credibility of the appellant's entire history. He said that he was unable to find any jurisdictional error arising from the weight given by the tribunal to the appellant's "belated presentation of highly significant claims", no matter how that may be described, or, indeed, for any other reason. I entirely agree with his Honour.
The allegedly unfair statement 16 The second ground of the appeal in full reads: The RRT made an unfair statement that because of the absence of persecution details of my parents in prior application, which I reported during the RRT review, the RRT decided it was "a fabrication and reflected poorly on the application's credibility." I fled from China and my whole family experienced fear and threat. The added evidence in the RRT review simply reflects the truth. There have been persecutions happening to my family since the day we accepted the truth from God. It is understandable that I may recall my memory about new events, which are sad for me and I tried to erase them from memory. 17 This ground raises no question of jurisdictional error. It was open to the tribunal to conclude that the belated account of heightened police interest in the appellant and his mother after the October 2008 was a recent invention. As the tribunal observed, the information was significant and, if true, would amount to evidence of a significant risk to the appellant if he were to return to China. The tribunal's finding that it is inconceivable that if this account were true he would not have mentioned it in his statement is neither illogical nor unreasonable.
Submissions 18 The appellant filed no written submissions. At the hearing, when invited to explain the errors in the federal magistrate's reasons, he asked the interpreter to read from a document in Mandarin (which I marked for identification and placed in the Court file). 19 First, the appellant complained that the federal magistrate's judgment was unfair because the judge could not find the error in the tribunal's decision. He repeated his point that he could only attend underground Christian gatherings in China, not registered church gatherings. 20 Secondly, he said that the tribunal member thought he had no evidence to corroborate his parents having been persecuted in China. 21 Neither of these matters discloses any jurisdictional error on the tribunal's part. 22 The appellant's final submission was that tribunal member failed to consider that he was harmed emotionally and severely, and his memory was affected. He claimed he was under great pressure when he attended the hearing and the tribunal. He complained that the tribunal failed to consider the issue of his memory problem. 23 This issue is not raised in the notice of appeal and was not raised in the court below. Nowhere in the appeal book, the statement attached to his visa application, the record of the delegate's decision, nor the tribunal's decision record is there any reference to any problem with the appellant's memory or to him having suffered emotional harm. There is therefore nothing to suggest that the hearing was unfair either in a general sense or in a way that would indicate a failure to comply with the requirements of s 425 (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553). 24 None of these matters takes the appeal any further. Nothing said in the statement raised any appealable error.
Conclusion 25 The appellant has been unable to show error on the part of the federal magistrate or jurisdictional error on the part of the tribunal. Accordingly, the appeal must be dismissed. The appellant should pay the Minister's 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 Katzmann.
SZQBX
Minister for Immigration & Citizenship