SZIUE v Minister for Immigration and Multicultural Affairs [2007] FCA 172 (21 February 2007)

Last Updated: 22 February 2007

FEDERAL COURT OF AUSTRALIA

SZIUE v Minister for Immigration and Multicultural Affairs [2007] FCA 172

SZIUE v Minister for Immigration & Anor [2006] FMCA 1551 affirmed
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 231 ALR 592 referred to

























SZIUE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2154 OF 2006

GYLES J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2154 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIUE Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	21 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent.

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 2154 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIUEAppellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRSFirst Respondent REFUGEE REVIEW TRIBUNALSecond Respondent

JUDGE:	GYLES J
DATE:	21 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1	Neither the grounds of appeal nor the submission filed prior to the hearing on behalf of the appellant isolate any appealable error in the decision of the Federal Magistrate from which the appeal is brought (SZIUE v Minister for Immigration & Anor [2006] FMCA 1551). Rather, there is a repetition of complaints made in the proceedings in the Federal Magistrates Court concerning the proceedings of the Refugee Review Tribunal (the Tribunal). Each of those complaints was properly considered and disposed of in a reasoned decision by Scarlett FM. Having read the comprehensive submissions of counsel for the Minister I would be content to simply say that no basis has been put forward to demonstrate any error in the reasons of the Federal Magistrates Court.
2	However, because of the repetition of complaints as to the manner in which the hearing was conducted, in effect alleging failure to accord procedural fairness and bias, I have read the transcript of what occurred at that hearing in the light of the later reasons of the Tribunal and in the light of the nature of the complaints made in the proceedings in the Federal Magistrates Court and repeated in this Court. I have also taken into account the recent decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 231 ALR 592. Having done so, I agree with the submission by counsel for the Minister that there is nothing in that decision which causes any disquiet as to whether there was lack of procedural fairness or bias in the present circumstances. Scarlett FM adequately dealt with the criticisms of the Tribunal’s procedure.
3	However, one aspect of the matter concerned me. The appellant’s basic case was that he feared persecution if he returned to China on account of his practising the Christian religion in association with an unregistered church. He claimed to have been converted to Christianity by a fellow labourer in a construction gang who spread the gospel amongst gang members who met and studied the Bible at secret gatherings. He was baptised by a priest organised by the fellow labourer who also led the group into seeking to spread the gospel to other labourers and local villagers with religious propaganda materials. This, he claimed, led to persecution at the hands of local authorities. This caused him to flee China and come to Australia. He claims to have practised Christianity at a local Sydney church since arrival in Australia.
4	During the course of the hearing the Tribunal member referred to some particular country information and made it clear that she had difficulty in believing that studying the Bible with a small group of workers, not being of a particular denominational group or of a particular belief, would be regarded as a church in the eyes of the Communist government.
5	The Tribunal gave an account of the conduct of the hearing in the course of its reasons, including the following:

‘The Tribunal read to the Applicant the country information from the US State Reports which indicated that a small group of people meeting to read the Bible would not be considered illegal but rather that an unregistered church would be considered to be illegal. The Tribunal also put to the Applicant that the Tribunal was unconvinced about his claim that they handed out leaflets to villagers given that the Applicant was not very specific about the detail of these leaflets. As such the Tribunal was not convinced that he did encounter difficulties with the authorities by reason of his claimed association with an unregistered church.’

6	Immediately after that account the Tribunal reproduced the following extract from the country information:

‘Despite the new religious affairs regulations, officials in many locations continued to pressure religious groups to register with government religious affairs authorities. There was a great deal of variation in how local authorities handled unregistered religious groups. In certain regions, government supervision of religious activity was minimal, and registered and unregistered churches existed openly side-by-side and were treated similarly by the authorities. In such areas, many congregants worshipped in both types of churches. In other regions, local implementing regulations call for strict government oversight of religion, and authorities cracked down on unregistered churches and their members. Implementing regulations, provincial work reports, and other government and party documents continued to exhort officials to enforce vigorously government policy regarding unregistered churches.

In some areas, despite the rapidly growing religious population, it remained difficult to register new places of worship, even for officially recognized churches and mosques.

Local officials have great discretion in determining whether "house churches" violate regulations. The term "house church" is used to describe both unregistered churches and gatherings in homes or businesses of groups of Christians to conduct small, private worship services. SARA officials confirmed during the year that unregistered churches are illegal, but prayer meetings and Bible study groups held among friends and family in homes are legal and need not register. In some parts of the country, unregistered house churches with hundreds of members meet openly with the full knowledge of local authorities, who characterize the meetings as informal gatherings to pray, sing, and study the Bible. In other areas, house church meetings of more than a handful of family members and friends are not permitted. House churches often encounter difficulties when their membership grows, when they arrange for the regular use of facilities for the specific purpose of conducting religious activities, or when they forge links with other unregistered groups or with co-religionists overseas. Urban house churches are generally limited to meetings of a few dozen members or less, while meetings of unregistered Protestants in small cities and rural areas may number in the hundreds.’

7	In the result, the Tribunal simply did not accept that the claims of the appellant were true and did not accept that the appellant was a genuine Christian or that he would practise the Christian religion on return to China in a manner or form that would result in harm to him from the Chinese authorities.
8	On the face of it, the country information to which reference was made in the reasons indicates that an itinerant group of workers, organised by a proselytising Christian, who themselves, in addition to studying the Bible, were handing out Christian propaganda would, in parts of the country, be at significant risk of being regarded as part of an unregistered church and so subject to persecution. On one view, that would remove a significant plank of the reasoning of the Tribunal.
9	However, upon consideration, a misunderstanding by the Tribunal as to the full effect of the particular country information could not, at least in this case, amount to jurisdictional error. The Tribunal concentrated upon the right questions. It was for the appellant to persuade the Tribunal that he was a genuine Christian. Even if it could be concluded that the Tribunal made a mistake in its assessment of him, it would be an error within jurisdiction not subject to correction through s 39B of the Judiciary Act 1901 (Cth). There is therefore no need to consider whether it would have been appropriate to permit a new ground to be framed on appeal at the instigation of the Court.
10	The appeal is dismissed. The appellant is to pay the costs of the first respondent.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 21 February 2007

	The Appellant appeared in person
Counsel for the First Respondent:	Ms V McWilliam
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	21 February 2007
Date of Judgment:	21 February 2007