SZHRO v Minister for Immigration and Citizenship [2007] FCA 174 (21 February 2007)

Last Updated: 22 February 2007

FEDERAL COURT OF AUSTRALIA

SZHRO v Minister for Immigration and Citizenship [2007] FCA 174

Migration Act 1958 (Cth) ss 91R(3), 424A(1), 425



Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
NAOA v Minister for Immigration and Multicultural Affairs [2004] FCAFC 241
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
SZEMS v Minister for Immigration and Multicultural Affairs [2006] FCA 359
SZGQE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 304
SZHRO v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1460












SZHRO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2045 OF 2006

NICHOLSON J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2045 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be added as the second respondent.
2. The description of the first respondent be amended to ‘Minister for Immigration and Citizenship’.
3. The appeal be dismissed.
4. The appellant pay the first respondent’s costs of the 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 2045 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a Federal Magistrate (Reithmuller FM) made on 5 October 2006: SZHRO v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 1460. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 11 October 2005, handed down on 1 November 2005. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant a protection (class XA) visa to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) (the Act).

2 When the appeal was called on, there was no appearance by or on behalf of the appellant. I found, for reasons given orally, that the appellant had been duly given notice of the place, time and date of the hearing of his appeal.

3 Counsel for the first respondent did not move the Court for dismissal, rather seeking that the Court deal with the appeal on its merits, even in the absence of the appellant.

4 Having heard counsel for the first respondent make oral submissions supplementing his written submissions, I was satisfied that the appeal should be dismissed. Orders were made accordingly. These are the reasons for which I made those orders.

Appellant’s claims

5 The appellant was found to be a citizen of the People’s Republic of China (China). He arrived in Australia on 6 February 2005. On 23 March 2005 he lodged an application for a protection visa. The appellant claimed to have a well-founded fear of persecution on the basis of his religion as a member of an underground Christian church. He claimed to have been baptised in 2001. In 2002 he commenced organising secret gatherings with a colleague. The appellant claimed that he was the assistant to the leader of a small religious group and that he had been investigated by the Public Security Bureau (PSB) for knowledge regarding the group’s leader. In November 2003, the group’s leader was arrested. The appellant became group leader in January 2004 and split the group into two smaller groups. Membership expanded and a third group was established. One of the leaders of these smaller groups was being investigated and the appellant, fearing he would be exposed, left China. After the appellant left China, the appellant’s assistant was arrested and her confession led to the arrest of the other group leaders and the PSB obtaining knowledge of the appellant’s role and leadership within the groups. He therefore claimed a well-founded fear of persecution because of his religion if he were to return to China.

6 The application was refused by a delegate of the first respondent on 6 June 2005.

Tribunal’s reasons

7 On 11 July 2005, the appellant made an application for review in the Tribunal. The Tribunal found significant parts of the appellant’s evidence were implausible, vague and generally unsatisfactory and it was not satisfied that the appellant was associated with an underground Christian church. The Tribunal was of the view that the appellant had fabricated his claims. The Tribunal gave its reasons for this finding, including that: the appellant’s evidence of his activities was unsatisfactory and implausible and he lacked knowledge of contents of propaganda materials he claimed the group distributed; his general knowledge of Christianity was poor, especially for a leader of an underground Church; he was unable to explain the difference’s between his unregistered church and the official registered Protestant church; it was implausible that the pastor of the appellant’s church was still operating in China unhindered if the authorities were pursuing the members of the church in the way the appellant alleged; and, if he were a committed Christian and a leader of an underground church, he would have taken steps to bring the plight of his arrested colleagues to the attention of human rights organisations or churches.

8 In consideration of the appellant’s claims of attending church in Australia, the Tribunal, on the basis of the appellant’s scanty knowledge of Christianity, accepted this claim but considered that the only reason the appellant attended church was to strengthen his claims. In reaching such a conclusion, the Tribunal applied s 91R(3) of the Act to disregard the appellant’s behaviour in Australia. The Tribunal also found that the chance the appellant would seek to practice Christianity in China was remote. Overall, the Tribunal was not satisfied the appellant was persecuted in the past for reasons of religion and that the chance of persecution in the reasonably foreseeable future was remote.

Federal Magistrate’s reasons

9 The appellant filed an application for review in the Federal Magistrates Court on 29 November 2005. His Honour heard the application on 3 October 2006. The appellant gave sworn evidence. On 5 October 2006, he dismissed the application and ordered the appellant to pay the first respondent’s costs.

10 Before the Federal Magistrate, the appellant relied on an amended application filed on 28 April 2006 which raised two grounds of appeal that asserted there was jurisdictional error and an absence of natural justice. Particulars provided in support of these grounds indicated the appellant wished to challenge the Tribunal’s decision on three specific bases. Firstly, that there was a breach of s 424A(1) of the Act in relation to country information, the practices in the underground church, and the appellant’s religious knowledge. His Honour rejected the particulars relating to a breach of s 424A(1) of the Act as he found the information was provided by the appellant for the purposes of the Tribunal application and was thus exempted by s 424A(3)(b) of the Act; the country information relied on by the Tribunal was exempted by s 424(3)(a) of the Act.

11 Secondly, he contended there had been a breach of s 425 of the Act by the Tribunal in relation to the hearing. The appellant asserted that he found the questions difficult to understand because he was unwell and the interpreter did not have sufficient knowledge to translate religious terms. His Honour was of the opinion that particulars relating to s 425 of the Act was not a basis for relief which was made out as there was no transcript of the Tribunal hearing submitted before his Honour; there were no examples of interpreter difficulties, no evidence of illness and no evidence that the appellant had drawn any of these matters to the attention of the Tribunal. In the absence of appropriate evidence, his Honour was not satisfied the appellant did not receive a proper hearing or that procedural fairness had been affected.

12 Thirdly, the appellant claimed that the Tribunal failed to properly assess the appellant’s credibility and that it did not contact the appellant’s priest. The Federal Magistrate found the appellant’s challenge to the Tribunal’s assessment of the appellant’s credibility could not succeed as merits review was unavailable from the Court. The Tribunal had specifically taken into consideration the appellant’s involvement with a church in Australia. His Honour was also of the opinion that the Tribunal was not required to make out the appellant’s case, tribunals always bear in mind the nervousness of the witness and there was no evidence here that the Tribunal did not consider those issues.

13 As jurisdictional error was not established, his Honour dismissed the application.

Grounds of appeal

14 On 19 October 2006 the appellant filed a notice of appeal in this Court which stated the following:

‘1. The learned Federal Magistrate erred in law.

2. The learned Federal Magistrate was wrong in finding that the Refugee Review Tribunal acted properly in its findings.’

These grounds as stated do not raise an error of law. However, the first respondent in written submissions assumed that the appellant, not being legally represented, intended to re-agitate each of the grounds rejected by the Federal Magistrate.

15 The Federal Magistrate’s rejection of the first ground on the basis that information provided in the application to the Tribunal for review comes within s 424(3)(b) and the independent country information comes within s 424A(3)(a) is free from error. His Honour has applied the words of the section to the factual circumstances. None of the difficulties in the construction of s 424A agitated in other cases arise here: cf Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at 600 [138].

16 There is no error in the Federal Magistrate’s reasons for rejecting the second ground that s 425 had not been complied with. The failure of the appellant to adduce any evidence to support the assertion that he was ill at the hearing before the Tribunal or that there were errors in interpretation mean that these grounds must fail. The Court can only proceed on the evidence before it: NAOA v Minister for Immigration and Multicultural Affairs [2004] FCAFC 241 at [21]; SZGQE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 304; SZEMS v Minister for Immigration and Multicultural Affairs [2006] FCA 359 (in relation to which special leave to appeal to the High Court was refused on 9 November 2006). A sub-ground of this ground is that the Tribunal had not made clear to the appellant key issues. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [43] it was said by the High Court that ‘based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment’. That is the position here. The delegate had based his reasoning on precisely those issues.

17 The reasons the Federal Magistrate gave for rejecting the third ground are free from error. As the Federal Magistrate observed, it is quite clear that the Tribunal had regard to the appellant’s attendance at church in Australia and accepted that he did so. Further, the authorities support the conclusion that the Tribunal is under no obligation to make the case for the appellant (Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576, [187] per Gummow and Hayne JJ; SZBEL 231 ALR at [40] or to make the inquiries he suggests (Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]).

Conclusion

18 For these reasons I dismissed the appeal with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated: 21 February 2007

No appearance by the Appellant
Counsel for the Respondents:	D Godwin
Solicitor for the Respondents:	DLA Phillips Fox
Date of Hearing:	21 February 2007
Date of Judgment:	21 February 2007