SZJEU v Minister for Immigration & Citizenship [2007] FCA 1239 (31 July 2007)

Last Updated: 16 August 2007

FEDERAL COURT OF AUSTRALIA

SZJEU v Minister for Immigration & Citizenship [2007] FCA 1239

SZJEU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 688 OF 2007

BENNETT J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
SYDNEY DISTRICT REGISTRY	NSD 688 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJEU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal is joined as the second respondent.
2. The appeal is dismissed.
3. The appellant is to pay the first respondent’s costs in the sum of $2,000.

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

IN THE FEDERAL COURT OF AUSTRALIA
SYDNEY DISTRICT REGISTRY	NSD 688 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJEU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of the People’s Republic of China (‘China’). He arrived in Australia on 27 July 2005 and lodged an application for a protection visa on 8 August 2005. In a statement accompanying his protection visa application (‘the statement’), the appellant claimed that he was a Christian and could not enjoy freedom of religion in China. He also claimed in the statement that he had been detained by Chinese authorities and that during the detention he was tortured for information about his church and its relationship with overseas churches. When the matter came before the Refugee Review Tribunal, the appellant resiled from the claims that he had made in the statement. He gave to the Tribunal in his oral evidence what the Tribunal accepted was a truthful account of his experiences in China and his concerns for the future.

2 The Tribunal remarked that the appellant gave his oral evidence in a very frank and open manner. The Tribunal accepted that the appellant’s father was a Christian and that fellow Christians gathered at the family home. The Tribunal considered the appellant’s evidence and independent evidence as to the treatment by the authorities of Christians in Guangdong Province, where he lived. The Tribunal concluded that the appellant did not have a well-founded fear of Convention related persecution when he left China for Australia. The Tribunal observed that the appellant had said that he wished to work in Australia, save some money and return home. The appellant told the Tribunal that he did not fear being persecuted in China and the Tribunal accepted that the appellant did not have a subjective fear of persecution in that country.

3 In the Federal Magistrates Court the appellant asserted, as his grounds of review (‘the first ground’), that the Tribunal had failed to carry out its statutory duty under s 424A of the Migration Act 1958 (Cth) (‘the Act’) and that the Tribunal decision was not based on rational and logical grounds (‘the second ground’).

4 As to the first ground, the appellant was unable to identify any information within s 424A(1) of the Act (SZJEU v Minister for Immigration & Anor [2007] FMCA 491 at [16]). Federal Magistrate Emmett observed that the Tribunal’s finding was based upon the evidence of the appellant at the hearing and her Honour was unable to find any basis for a failure on the part of the Tribunal to comply with its obligations under s 424A.

5 The second ground was not supported by particulars. Her Honour observed at [18] that there was nothing on the face of the decision to suggest that the Tribunal was not based on rational and logical grounds. Her Honour found that there was no jurisdictional error in the Tribunal’s decision, including the conduct of its review (at [19]).

6 In the notice of appeal to this Court, the appellant raises three grounds:

1. A failure to consider his application according to s 424A of the Act. He says he was not notified of the reason or part of the Tribunal’s reasons for affirming the decision under review.

2. The Tribunal relied upon irrelevant materials.
3. The Tribunal did not believe "my claims based on assumption".

7 In his affidavit in support of the appeal, the appellant provided further details. The appellant says that the Tribunal relied upon information in his application for a protection visa and that particulars were not provided in writing. Further, he said that the Tribunal relied upon irrelevant materials, being country information said to be out of date and/or based on hearsay.

8 The Minister observes that the reference to country information was not a ground raised before the Federal Magistrate and that the appellant would require leave to raise this argument for the first time on appeal. The Minister does not, however, oppose the grant of leave.

Country Information and s 424A of the Act

9 The decision of the Tribunal was based on evidence provided by the appellant at the hearing. The appellant resiled from the claims made in the statement and the Tribunal finding was based upon the appellant’s evidence that he was not a Christian and had no interest in Christianity. The Tribunal did rely on country information. However, even if the appellant were to establish that that information was in some way outdated, it would not amount to jurisdictional error. The choice and assessment of country information is a factual matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]–[13]).

10 The decision of the Tribunal was founded on information provided by the appellant at the hearing and country information. In neither case did s 424A of the Act oblige the Tribunal to provide written particulars of that information to the appellant (s 424A(3)). No jurisdictional error has been demonstrated.

Reliance upon irrelevant materials

11 The particulars of this ground of appeal refer to country information. As already stated, the choice and assessment of country information is a factual matter for the Tribunal. No jurisdictional error is demonstrated.

The Tribunal’s belief concerning the claims

12 This ground seems to be an assertion as to the merits of the Tribunal’s decision. In any event, the Tribunal accepted the claims made by the appellant at the hearing. If, by this ground, the appellant is raising an allegation of bias, such an allegation carries a heavy onus and must be distinctly made and clearly proved. No particulars have been given. No evidence in support has been adduced. The allegation of bias is not made out.

13 The appellant appeared before me in person, assisted by an interpreter. He did not raise any matter going to the subject matter of his notice of appeal, nor provide any further particulars in relation to it. He expressly stated that he could add nothing to the matters raised in his notice of appeal. The appellant reiterated some of the matters referred to by the Tribunal. In particular, he expressed concern as to the amount of money he has spent in relation to his appeal and paid to his migration agent. He says that he wants to stay in Australia until the end of the year and then to leave the country without owing any money to anyone. I have formed the view, as did the Tribunal, that the appellant has been candid and frank about his position.

14 I have found no jurisdictional error on the part of the Tribunal and no error on the part of the Federal Magistrate in dismissing the application before her Honour. It follows that the appeal must be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 14 August 2007

The Appellant appeared in person.
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007