SZINO v Minister for Immigration & Multicultural Affairs [2006] FCA 1629 (15 November 2006)

Last Updated: 27 November 2006

FEDERAL COURT OF AUSTRALIA

SZINO v Minister for Immigration & Multicultural Affairs
[2006] FCA 1629

SZINO v MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS AND REFUGEE REVIEW TRIBUNAL


NSD 1441 of 2006


LINDGREN J
15 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1441 OF 2006

BETWEEN:	SZINO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	15 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:


1. The application for leave to appeal be dismissed.

2. The applicant pay the first respondent’s costs of the application for leave to appeal.
















Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1441 OF 2006

BETWEEN:	SZINO Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	LINDGREN J
DATE:	15 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant applies by an application filed on 28 July 2006 for leave to appeal from the judgment of the Federal Magistrates Court of Australia (‘FMCA’) given on 10 July 2006. Pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), the FMCA dismissed the applicant’s application to that Court. The ground was that the applicant had failed to demonstrate an arguable case for the relief which he claimed. The FMCA also ordered the applicant to pay the costs and disbursements of the first respondent (‘the Minister’) of and incidental to the application, in an amount of $2500.

2 The application to the FMCA was an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) by which that Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant.

3 The applicant’s case was that he was a citizen of the People’s Republic of China and had a reasonable ground to fear persecution if he were to return to China on the ground of religion. His case was that he was part of an underground church and had already suffered some persecution while he was in China.

4 The applicant arrived in Australia on 8 August 2005 and applied for the protection visa on 28 August 2005. The delegate refused his application on 28 September 2005. He applied to the Tribunal on 8 November 2005 for review of the delegate’s decision, and the Tribunal made its decision on 31 January 2006, which was handed down on 23 February 2006.

5 The Tribunal did not believe the applicant.

6 Although there is no draft notice of appeal accompanying the application for leave to appeal, that application was accompanied by an affidavit made by the applicant. The affidavit identifies the following grounds of appeal:

(1) the interpreter before the Tribunal did not interpret particular religious terms clearly and correctly owing to the interpreter’s poor religious knowledge, with the consequence that the applicant was confused in dealing with questions put to him by the Tribunal member;
(2) the Tribunal failed to comply with its obligation under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’);
(3) the Tribunal failed to comply with its obligations under s 425 of the Act;
(4) the Tribunal failed to consider the applicant’s claims fairly and properly;
(5) the Tribunal failed to consider relevant important evidence in relation to the applicant’s claims.

7 The applicant also filed a submission in support of his application for leave to appeal. That submission, filed on 26 October 2006, elaborated on the grounds under ss 424A(1) and 425. As to the former, the submission addressed a point referred to in the Tribunal’s reasons for judgment, namely, that the applicant was not able to tell the Tribunal that Christians celebrate the resurrection of Christ on Easter Sunday. As to the ground under s 425, the submission asserted that the Tribunal member had not given the applicant a fair hearing, had treated him like a ‘criminal’, had raised doubts as to his answers, had raised difficulties just to spite him, and had seized on ‘vague’ or ‘inconsistent’ claims, while refusing to make clear to him what the Tribunal member’s real concerns were.

8

On the hearing today, the applicant has said that there are three essential points:

(1) the misinterpretation of the Tribunal’s question to him concerning the celebration of Easter;

(2) a wrong use of country information;

(3) a misuse of information in relation to the persecution of the applicant’s mother.

9 There is overlap between the five grounds in the affidavit accompanying the application for leave to appeal, the submission and the three matters raised on the hearing today. I will address the five grounds first.

10 (1) The question of the transcript of the hearing before the Tribunal was referred to by the Federal Magistrate. The Federal Magistrate observed that the applicant had told him that he had not received an audio recording of the Tribunal hearing, as a result of which the Federal Magistrate directed the Minister to ensure that a copy of the recording was provided to him. The applicant was directed to file and serve an amended application and affidavit evidence by 9 June 2006. An order made by the Federal Magistrate on 24 April 2006 specifically referred to the possibility that the applicant may wish to produce a transcript of the Tribunal hearing.

11 The applicant filed an amended application on 9 June 2006 but did not file any evidence in support of his amended application.

12 In this present application before this Court the applicant has filed an affidavit on 24 August 2006, to which is attached a transcript of the hearing before the Tribunal. I have allowed the affidavit to be read for the limited purpose of permitting debate on the question whether the transcript should be admitted. In my opinion it should not be admitted, because the applicant has not satisfied the requirements for the admission at appellate level of further evidence that was not before the lower court. There is no question that the transcript was not before the FMCA. It is not established that it could not have been, and in addition it is not established that if it had been, a different result would be likely to have followed. In relation to this last point, the relevant exchange concerning Easter is as follows:

‘Member: What do Christians celebrate on Easter Sunday?
Interpreter: (Mandarin)
Applicant: (Mandarin)
Interpreter: Can you repeat your question?
Member: What do Christians celebrate on Easter Sunday?
Interpreter: (Mandarin)
Applicant: (Mandarin)

Interpreter: The God created the world for the six days, for the seventh day he took rest.
Member: According to information I have got, Easter is one of the most important Christian festivals, or celebrations, it’s a day when Christians celebrate Jesus’ resurrection, his rising from the death. How would you don’t know? (sic)
Interpreter: (Mandarin)
Member: It’s not about creating the world or rest.
Interpreter: (Mandarin)
Member: Easter is about celebrating Jesus’ resurrection.
Interpreter: (Mandarin)
Member: Anything you got to say about why you did not know about it?
Interpreter: (Mandarin)
Member: Ok, I note that I did give you opportunity to respond twice and you didn’t.
Interpreter: (Mandarin)’

13 The critical question is what a certain entry ‘(Mandarin)’ signifies. The applicant asserts from the bar table today that the interpreter interpreted in Mandarin, ‘What do Christians celebrate on Sunday?’ omitting the word ‘Easter’. According to the applicant, all that followed on his part was based on his understanding that the question he was being asked was what do Christians celebrate on Sunday. This is why he answered:

‘God created the world [in] six days. For the seventh day he took rest.’

14 On the basis that the applicant’s understanding was as he says, it is surprising that when the Tribunal member said that Easter Sunday is not about creating the world or taking rest, but is about celebrating the resurrection of Jesus, the applicant did not correct the member. The member noted that he had given the applicant an opportunity twice to respond and he did not. It is difficult to accept what the applicant asserts from the bar table today. Be that as it may, there was no evidence as to the meaning of the relevant entry ‘(Mandarin)’, and, moreover, the transcript should not be admitted at the appellate level for the reasons which I gave.

15 (2) Section 424A(1) of the Act requires that the Tribunal give to an applicant particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review, that the Tribunal must ensure, as far as is reasonably practicable, that the applicant understands why it is relevant, and that the Tribunal must invite the applicant to comment on it. In substance the complaint here is that the Tribunal should have informed the applicant in advance of the questions that it was going to ask him in order to test his religious knowledge.

16 I disagree. The purpose of the line of questioning engaged in by the Tribunal was to test the genuineness of the applicant’s claim to be a Christian. The essence of such a line of questioning is that the questions not be known, otherwise it would be possible for an applicant to learn the answers prior to the hearing. Another way of reaching the same result is via s 424A(3)(b) of the Act: the applicant’s answers given to the Tribunal on the hearing did not exist previously, and were given by the applicant to the Tribunal for the purpose of his application to the Tribunal.

17 There is no substance in this ground.

18 (3) Section 425 provides that the Tribunal must invite the applicant to appear before it to give evidence and to present arguments relating to the issues arising in relation to the decision under review. The Tribunal did so. The applicant did attend. The applicant was given the opportunity to present arguments. His complaint is that the Tribunal did not believe him. Disbelief is not a non-observance of s 425.

19 The complaint in relation to s 425 also embraces the complaint about interpretation, but I have already dealt with this. It was not made out on the evidence before the FMCA.

20 (4) The complaint that the Tribunal failed to consider the applicant's claims fairly and properly is again a ‘wrap-up’ complaint in relation to bias and also takes into account the complaint about interpretation. An appellate court should not be troubled with that argument because there is no substance in it.

21 (5) The applicant has not pointed to any particular piece of evidence that should have been taken into account.

22 I turn now to the three matters mentioned on the hearing today.

23 I have dealt earlier with the point concerning Easter.

24 The point in relation to country information arises from the Tribunal’s observation that the applicant had, in substance, asserted that the underground church is persecuted throughout China. The Tribunal member observed that this was not in accord with country information before the Tribunal which made it clear that the attitude to the underground church varies from area to area. The applicant’s response to this today was simply that he did not say any such thing, that is, that he did not say that throughout China there is opposition to underground churches. I read to the applicant the relevant part of the transcript, in which he is recorded as saying:

‘All governments oppose underground churches, they just do not want to recognise this.’

His response was to deny that he ever said this, and that it was another error of the interpreter.

25 In fact, the Tribunal member proceeded at that point of the transcript to mention to the applicant that the country information before the Tribunal was to the contrary of what he was saying because it showed that the treatment of church members who belong to non-registered churches varies from area to area, depending upon the authorities’ attitudes. However, the applicant’s response was just to say that he could give no explanation, it was really a matter for the Communist party. What is important is that his initial statement was unequivocally that all governments oppose underground churches, whereas he agrees that that is wrong but says that he did not say that before the Tribunal. The Tribunal was entitled to proceed on the basis that he did say it.

26 The final matter relates to the applicant’s mother. In the course of its reasons, the Tribunal referred to a claim by the applicant that his mother had faced persecution in Fuqing city, and the Tribunal stated that it believed that if the mother had been deprived of her liberty for two years as alleged, she would have found a safe area to move to. The Tribunal also recorded that the applicant could not offer an explanation as to why his parents did not relocate. What the applicant says on the hearing today is that the application for the protection visa was not one by his mother but by himself. This is true, but what the Tribunal member was stating at that part of the reasons was that the applicant was not to be believed because an aspect of his evidence concerning his mother was implausible. It is no answer to say that the application for the protection visa was not one by his mother – something about which the Tribunal was in no doubt.

27 For the above reasons, an arguable case is not made out for review of the decision of the FMCA at appellate level, and the application for leave to appeal against the dismissal under rule 44.12(1)(a) of the Federal Magistrates Court Rules should be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:
Dated: 27 November 2006

The Applicant appeared in person
Solicitor for the Respondents:	Ms K Hooper of Phillips Fox
Date of Hearing:	15 November 2006
Date of Judgment:	15 November 2006