SZRNB v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 A criterion for the grant of a protection visa is that Australia owes protection obligations to the visa applicant under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol ("Convention"): Migration Act 1958 (Cth), s 36(2)(a). Australia owes protection obligations to refugees. A refugee is a person who has a well-founded fear of being persecuted for one or more Convention reasons: Convention, Art 1A(2). One of those reasons is religion. Section 91R(3) of the Act provides that for the purpose of determining whether this criterion is made out, conduct in which the person engages in Australia is to be disregarded unless the person satisfies the Minister that they did so otherwise than for the purpose of strengthening their claim to be a refugee. 2 In January 2012 the appellant, a young Chinese citizen from Fujian province, applied for a protection visa, claiming to fear persecution in China on religious grounds. He says he is a Christian and a member of an underground Christian church, the Family Church. The appellant came to Australia to study in 2007. His student visa expired in March 2010. He was taken into immigration detention in January 2011 and applied for the protection visa some 12 months later. On 1 March 2012 a delegate of the Minister for Immigration and Citizenship refused his application. The appellant applied to the Refugee Review Tribunal for a review of the decision on its merits but the tribunal affirmed the delegate's decision. 3 After the appellant failed to persuade a federal magistrate to quash the tribunal's decision, he filed an appeal in this court. The sole ground of appeal identified in the notice of appeal recites: The court only accept RRT's judgment. 4 The federal magistrate did not accept the "judgment" of the tribunal. Her Honour held that that the tribunal had not fallen into jurisdictional error. The question in this appeal is whether she was wrong to do so. The short answer is that she was not. The appellant told the tribunal that his mother, who had introduced him to the church, and members of his extended family had been arrested in 2007 (though his accounts about whether that was before or after he travelled to Australia were inconsistent), and that he feared he would also be arrested if he returned to China. He attributed the delay in making his application to ignorance on his part. He claimed to have (sporadically) attended Christian churches of one kind or another whilst in Australia and demonstrated some knowledge of Christianity. 5 The only corroborative evidence he presented to the tribunal, however, consisted of a baptism certificate showing him to have been baptised in Villawood Immigration Detention Centre in March last year. The appellant failed in his application for review because the tribunal did not believe him. It did not accept that he was a genuine Christian or that the events he claims took place in China in fact took place. The tribunal decided that he had never attended a Christian church in Australia before being taken into detention and found that the only motivation he had for attending Christian services in this country was to strengthen his claim for a visa. It considered that his knowledge of Christianity was consistent with attendance at services whilst in detention but inconsistent with his claim to have had an active interest in Christianity since childhood, which he had maintained to a degree since coming to Australia. 6 The tribunal went on to explore whether there was any other basis upon which the appellant could be entitled to a protection visa but decided there was not. Whether or not the tribunal was right to come to these conclusions is neither here nor there. The Federal Magistrates Court may only set aside a decision of the tribunal for jurisdictional error: Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In his application in that Court the appellant contended that there was jurisdictional error. His application, however, was uninstructive. The grounds read (without alteration): 1. Jurisdictional error. 2. Denial of natural justice. I am not agree the decision which from the RRT. 3. Failing to take into account very relevant facts of the matter. 7 The grounds were not particularised. The application was accompanied by an affidavit, but the affidavit shed no further light on these matters. The appellant merely asserted that he would face persecution by the Chinese authorities if he were to return to China. This assertion revealed the true basis for his application. The appellant wanted the Federal Magistrates Court to review the tribunal's factual findings. Unfortunately for him, however, the court had no power to do this. 8 At the hearing the appellant did not elaborate on the first or third grounds of his application, but when asked about the second, he told the federal magistrate that the tribunal did not consider what he had said. Her Honour rejected the submission, and rightly so. Her Honour investigated whether there was any basis for the contention in ground 2 that the appellant had been denied natural justice - whether bias could be imputed to the tribunal or whether the tribunal had failed to comply with its obligations to give the appellant an opportunity to be heard before making an adverse decision (set out in Pt 7, Div 4 of the Migration Act, which by reason of s 422B of the Act, is to be taken as an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals). 9 Her Honour held that there was no basis for the contention. There is no reason to doubt the correctness of this decision or her conclusion (at [31]) that there was "nothing in the material to support any contention that the [t]ribunal erred by failing to have regard to relevant considerations, by failing to apply the law correctly or in any other way". Indeed, it is difficult to see how the federal magistrate could have come to any other conclusion. First, the appellant did not identify which "very relevant facts" were ignored. Secondly, jurisdictional error will not be made out on the basis of a failure to take into account a relevant fact unless the fact is one the tribunal is bound to take into account (cf. Minister for Aboriginal Affairs v Peko-Wallsend Limited (1984) 162 CLR 24 (Mason J) at 39, Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 (Allsop J) at [57]), because, for example, it is a component integer of the appellant's claim. 10 As I explained in SZQUB v Minister for Immigration and Citizenship [2012] FCA 471 at [32], failing to take into account evidence which, if accepted, might have resulted in a different finding of fact will not generally amount to jurisdictional error. In any event, this was not a case of the tribunal ignoring relevant facts but of failing to accept evidence as fact. The task of determining whether evidence should be accepted as fact is one for the Minister and the tribunal. It is not, as the federal magistrate pointed out, a task that is entrusted to the Federal Magistrate's Court. 11 The appellant filed no submissions in support of the appeal. Nothing the appellant put in oral argument advanced his case. When invited to indicate why his appeal should be allowed (through a Mandarin interpreter) he said that the decision was unfair; that was why he appealed. When I asked him what was unfair he replied that both the delegate and the tribunal had asked him for evidence to support his application but, because he was in detention he had great difficulties producing the evidence. 12 The appeal is 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]. The appellant has failed to identify any appealable error. The matters he raised, as the Minister submitted, do not denote jurisdictional error on the part of federal magistrate or, for that matter, the tribunal. Accordingly, the appeal must be dismissed. The appellant should pay the Minister's costs as agreed or assessed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.