SZHRG v Minister for Immigration and Citizenship [2007] FCA 189 (22 February 2007)

Migration Act 1958 (Cth) ss 424A, 424A(1), 424A(3)(b)

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
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
SZHRG v Minister for Immigration & Multicultural Affairs [2006] FMCA 1304
Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

SZHRG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1791 OF 2006

NICHOLSON J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1791 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NICHOLSON J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

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 1791 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	NICHOLSON J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

1 This is an appeal from a decision of a Federal Magistrate (Scarlett FM) made on 29 August 2006: SZHRG v Minister for Immigration & Multicultural Affairs [2006] FMCA 1304. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 October 2005 and handed down on 27 October 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 The appellant is a citizen of the People’s Republic of China (China). Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of her religious beliefs as a member of an underground Christian church in China. She claimed she was introduced to Christianity by her boyfriend whose parents had both been persecuted to death because of their Christian beliefs. Her claims indicated that she first attended underground church meetings in June 2000 and was baptised in August 2000. In December 2000 the appellant was late for a secret meeting and when she arrived at the meeting, plain clothed police were there. She was arrested and detained for a week but was released after she wrote a self criticism and paid a fine because she was not regarded as a key member. Three other members were sent to prison.

3 The appellant claimed that with the assistance of her friends, she and her boyfriend started a new group of the underground church of about ten people. However, by 2004 there were more than 100 members, including a children’s group, youth group and adults groups. The appellant claimed that her activities were discovered in February 2004 when an underground priest attended the end of a week long bible study group and was followed by plain clothes policemen. The appellant was arrested along with her boyfriend and her friends who assisted her with the church. She claimed to have been detained in the same cell as another member. This member was interrogated, tortured, became mad and consequently was sent to a mental hospital. The appellant said she became violently ill. The appellant was released on bail to attend hospital but escaped and hid in another city for seven months, whilst her boyfriend died in detention in November 2004 after claiming to have been a leader of the church. The appellant, with the help of her religious brothers and sisters, obtained a false passport and travelled to Australia. The appellant claimed that she was wanted by the Public Security Bureau. In her claims to the Tribunal, the appellant provided a letter from an Australian Christian church supporting her claims of participating in Church activities since 6 February 2005.

4 The Tribunal had concerns about the veracity of the appellant’s claims. Looking at the evidence as a whole, the Tribunal was not satisfied that the appellant was a credible witness. The Tribunal found the appellant did not know that Christians needed to be baptised to be cleansed of original sin and had no idea of the meaning of the Holy Trinity, although she had knowledge of other aspects of Christianity. However, when questioned about her activities, the Tribunal found the appellant to be vague, general and evasive. The appellant was found to have given contradictory information, on one hand that she had reported to the police when she had been released but quickly changed her evidence saying she did not actually do this. These matters indicated to the Tribunal that the appellant had fabricated her claims in order to support her application for a protection visa and this reflected poorly on the appellant’s credibility. The Tribunal did not accept the appellant was a Christian or a member of an underground church or that she had been detained or ill-treated. The Tribunal did not accept the appellant went into hiding and had used a false passport. The Tribunal, based on its adverse credibility finding, was satisfied it was entirely plausible that the appellant’s passport was her real passport and that the appellant’s claim that she was really the person on the identity card was not truthful and accurate information.

5 The evidence that the appellant had been involved in Christian activities in Australia was accepted by the Tribunal but in light of the fact that she commenced these activities approximately seven days after her arrival and in conjunction with the Tribunal’s adverse credibility finding, the Tribunal was satisfied the appellant was engaged in these activities for the purpose of strengthening her claims for a protection visa. The appellant’s explanation for attending a Christian church so soon after arrival in Australia to seek comfort was unconvincing because the appellant had said that she was unaware that she could apply for a protection visa at the time but she had already lodged an application for one. The Tribunal was therefore not satisfied the appellant had a well-founded fear of persecution and affirmed the decision of the delegate.

6 Before the Federal Magistrate, the appellant relied on an amended application filed on 27 June 2006 which raised three grounds of appeal. Firstly, the appellant asserted that the Tribunal failed to carry out a statutory duty by not providing information, relevantly the date on which the appellant lodged her protection visa application, to the appellant for comment. Secondly, the appellant raised grounds that the Tribunal made unwarranted assumptions that the appellant attended church to enhance her protection visa claims. Thirdly, there was an allegation that the Tribunal failed to carry out its review in a bona fide basis in relation to its assessment of the appellant’s knowledge of Christianity, including assessing the appellant on the basis of a Christian in Australia rather than what could be expected of a practitioner of an illegal, underground church in China.

7 Federal Magistrate Scarlett considered each of the appellant’s grounds in light of the Tribunal’s decision and found no jurisdictional error. His Honour considered that the first ground alleged a breach of s 424A(1) of the Act but found that the ground must fail under s 424A(3)(b) as the information was submitted to the Tribunal by the appellant in her application for review on 5 July 2005. Turning to the second ground, his Honour noted that the Tribunal made conclusions on the appellant’s credibility and stated that credibility findings were findings of fact which could not be reviewed by the Court conducting judicial review. In consideration of the final ground, his Honour found no evidence of bad faith. His Honour was mindful of the fact the appellant was not legally represented but was not satisfied the appellant had established any jurisdictional error on the part of the Tribunal.

These were treated on the hearing of the appeal as requiring a re-agitation of the grounds raised before the Federal Magistrate.

9 The first ground related to the application of s 424A of the Act. The ‘information’ which the Tribunal used to reach this conclusion was the adverse finding it had made on her credit. No obligation to inform the applicant of the Tribunal’s reasoning process in this respect arises under s 424A. The Tribunal’s subjective appraisals, thought processes or determinations are not information for the purposes of s 424A: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 428 [95] per Allsop J and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477 [24] per Finn and Stone JJ.

10 The second submission is that the Tribunal should have made inquiries with the Australian Mission in China to access the appellant’s visa application file before making the finding that it was plausible that the appellant’s real name was the one appearing on her passport. The Tribunal is under no obligation to make the case for an application (Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 579 [187] per Gummow and Hayne JJ; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [40]) or to make the inquiries (Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]).

11 The third submission is that the Tribunal was biased because it relied upon the substance of the letter from the Padstow Chinese Congregational Church in a manner adverse to her without first speaking to the author of the letter. It is submitted that the factual information which the Tribunal relied upon (that the appellant had been worshipping at the Church since 6 February 2005) was apparent upon the face of the letter. The letter was submitted to the Tribunal by the applicant for the Tribunal to use in assessing her claims. Reliance upon that information without reference to the author of the letter in no way creates an apprehension of bias.

12 For the above reasons I reached the view that the appeal could not succeed and made the orders appearing in these reasons.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

The Appellant represented herself

Counsel for the First Respondent:	D Godwin

Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing and Orders Made:	22 February 2007

Date of Judgment:	22 February 2007

Federal Court of Australia

SZHRG v Minister for Immigration and Citizenship [2007] FCA 189 (22 February 2007)