SZIPW v Minister for Immigration and Citizenship [2007] FCA 198 (21 February 2007)

Last Updated: 2 April 2007

FEDERAL COURT OF AUSTRALIA

SZIPW v Minister for Immigration and Citizenship [2007] FCA 198

SZIPW, SZIPX AND SZIPY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1875 OF 2006




DOWSETT J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1875 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIPW First Appellant SZIPX Second Appellant SZIPY Third Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

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

THE COURT ORDERS THAT:

1. Each appeal be dismissed.
2. The name of the first respondent be amended to "Minister for Immigration and Citizenship".
3. The first, second and third appellants 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 1875 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIPW First Appellant SZIPX Second Appellant SZIPY Third Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

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

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a federal magistrate dismissing an application for review of a decision of the second respondent (the "Tribunal"). The appellants are husband, wife and son. They claim to be citizens of the People’s Republic of China. They arrived in Australia on 6 June 2004 and on 23 June 2004 applied for Protection (Class XA) visas. A delegate of the first respondent (the "Minister") refused those applications, and the Tribunal affirmed that decision on 2 November 2004. The appellants sought review of the decision in the Federal Magistrates Court and, on 7 November 2005, a magistrate quashed the decision and remitted the matter to the Tribunal for reconsideration. The Tribunal reconsidered the matter and, on 2 March 2006, handed down a decision affirming the Minister’s decision. The appellant applied for judicial review of that decision. The magistrate’s decision on that application is the subject of this appeal.

2 The grounds for review were that the Tribunal member failed to assess the claim fairly or properly; that it did not observe the requirements of s 424A of the Migration Act 1958 (Cth) (the "Act"); that it failed to comply with its obligations under s 425; and that the presiding member made an incorrect finding of fact. The Rules of the Federal Magistrates Court provide that on an application of that kind, the magistrate may, at a preliminary hearing, consider whether or not appropriate grounds for review have been raised and if so, call on the Minister to show cause why relief ought not be granted. If no arguable grounds are demonstrated the magistrate may dismiss the matter.

3 In the present case the magistrate considered that the only arguable ground was that concerning s 424A, and the decision under appeal seems to concern that issue. However the Minister has taken the view that at the hearing on 13 September 2006, all of the issues raised in the application were disposed of and accepts that the appeal should proceed upon the basis that it is an appeal from the whole of the magistrate’s determination of the application for review, not only that part which concerns s 424A. Given that the first appellant appears in person, that is an appropriate approach.

4 The first appellant claims to fear persecution by reason of his religious belief. He claims to be a Christian and to have been a member of an underground congregation in China. He also claims to have been a major financial supporter of his church and that he experienced numerous incidents of repression in China, directed against him and against other members of the church. The second and third appellants relied upon the first appellant’s claim. The Tribunal disposed of his claims in this way:

‘I do not accept that the [appellant] was a member of a Christian underground church in China. The [appellant’s] written claims indicated that he had been a key activist in a Christian underground church but he also indicated at the first Tribunal hearing that he had only supplied premises and money. This inconsistency was pointed out to the [appellant] at the first and second hearings. At the second hearing he claimed that the person who provides the premises and money is very important. I consider that the inconsistency indicates that his claims of being a member of a Christian underground church in China were fabricated to support his application for a protection visa. I consider that when the [appellant] was faced with difficulty during the first hearing in explaining how a key activist was able to depart China without restriction he stated that he had only been involved in supply of premises and money. However, this assertion diminished much of the substance of his claim and I do not accept the explanation given for the apparent inconsistency at the second hearing.

The [appellant] displayed a superficial knowledge of some Christian practices and beliefs which I consider he had acquired whilst attending a Christian church in Sydney from June 2004. However he did not display the depth of knowledge which I would have expected a person who was a committed member of an underground Christian congregation in China and who had left China because he feared harm for reasons of his beliefs. He knew little about the differences between the unofficial and official churches in China, he had no idea that there were different Christian denominations such as Protestants and Catholics, he did not know how Christianity was differentiated from other religions and did not know that Bibles were available for purchase and study in China. When faced with questions which required some knowledge of detail he resorted to repeating he had faith in Jesus and God.

As I do not accept that the [appellant] was ever a member of an underground Christian church in China I do not accept that he was arrested, questioned or detained for reason of his religion in 2004. I am supported in this finding by the evidence that the applicant, his wife and his son were able to depart China without restriction or difficulty using their own passports. Whilst I accept that bribery is quite common in China I do not accept that if the [appellant] had been a key activist in the underground church and that authorities had a serious adverse interest in him that officials would have accepted a bribe to assist his departure. The country information indicates that such actions would put officials at risk of harm if uncovered.

I am further supported in this finding by evidence given during the first Tribunal hearing when the Tribunal Member asked him about the inconsistency between his statement that he was able to leave China without restriction and his written claims that he had been interrogated, detained, and fined in 2004. The [appellant] did not directly respond to this query but reiterated his written claims that after he arrived in Australia two of his employees were arrested by authorities and that they told authorities about his involvement in the church. When pressed on how he was able to leave China he told the Member that the authorities knew he was religious but did not discover any factual matters about what he did or the extent of his role in the church.’

5 After dealing with certain specific factual matters the Tribunal continued:

‘I accept that following the [appellant’s] arrival in Australia he has been attending a Christian church in Padstow and that he has acquired some superficial knowledge of matters of Christian belief and practice. I do not accept the [appellant] has given truthful evidence about the extent of religious beliefs for the reasons set out in this decision and I consider that he has attended the church in Padstow to support his claims for a protection visa. I do not accept that he has become a committed Christian and I do not accept that if he returned to China he would seek to practise as a Christian in an underground church. I therefore do not accept that the [appellant] will face any risk of harm for reasons of religion if he returns to China now or in the foreseeable future.’

6 For those reasons the Tribunal dismissed the application.

7 Turning to the grounds for review raised before the magistrate, the first was that the Tribunal had not dealt fairly and properly with his claims. The magistrate found no justification for this view, and no basis for such an allegation has been raised before me. Apart from complaining that the case was not accepted by the Tribunal, the only substantial criticism made was that the first appellant was given the services of a Mandarin interpreter. It seems that Mandarin is his second language but as the magistrate pointed out, he requested a Mandarin interpreter. In the circumstances, I can see nothing in this ground. Similar considerations apply to the allegation of breach of s 425.

8 As to s 424A, it is not entirely clear upon what basis the appellants seek to rely upon it. When I asked the first appellant to identify the information which he said should have been communicated to him pursuant to s 424A he identified only various findings of fact made by the Tribunal. Clearly, such findings cannot be the subject matter of the prescription contained in s 424A. The magistrate considered that the claim may have related to certain inconsistencies between the material contained in the visa application and accounts given in the oral hearings. However the magistrate pointed out that the relevant information was also contained in documents provided by the appellant for the purposes of the review proceedings in the Tribunal, and that it was therefore impossible to conclude that the Tribunal had failed to advise him of information of the kind contemplated in subs 424A(1). In those circumstances, the magistrate concluded that no failure to comply with that section had been demonstrated. I see no error in that reasoning.

9 I have considered the magistrate’s decision in relation to each aspect of the original application for review, primarily because the appellants have not identified in their notice of appeal any particular ground of criticism of the decision. Before me the first appellant has primarily reasserted his case, either not understanding or not accepting that he failed in the Tribunal because the Tribunal did not accept his claims as truthful. Disagreement with findings of fact is not an available basis for judicial review of a decision of the Tribunal. In those circumstances the appeal must be dismissed. The name of the first respondent will be amended to "Minister for Immigration and Citizenship".

10 I should record events which have occurred since I pronounced the above reasons. Before the magistrate the Minister sought costs against each of the three appellants. However the magistrate declined to make an order against the second appellant on the basis that she had taken no part in the proceedings. The magistrate understood the third appellant to be a child. If that was so then perhaps some more formal arrangement ought to have been made for his representation. In any event it seems that he was, in fact, an adult.

11 Before me, the Minister sought orders for costs of the appeal against all three appellants. Out of an abundance of caution I enquired as to whether or not the wife and son were really parties to the appeal or had been named in the title of the proceedings without their authority. An examination of the notice of appeal suggests strongly that all three of them have signed it. I then realised that I had not, at the outset of proceedings, ascertained whether or not the first appellant, was appearing for the other two or only for himself. I had, I think, observed that he appeared in person. That is the note which I have made in my book. When asked at this late stage in proceedings whether he appeared for the other appellants, he said that he appeared only for himself. I then indicated to counsel for the Minister that it seemed that the matter should be treated as having been heard in the absence of the second and third appellants. Counsel was concerned that such a course might leave it open to them to apply to set aside any orders made against them. I do not understand that either the second or third appellant played any part in proceedings in the Tribunal or before the federal magistrate.

12 In view of the confusion it seemed appropriate to have the second and third appellants’ names called outside the Court. As this was being done, the first appellant, through the interpreter, asserted that neither his wife nor his son was here. That was incorrect. His wife was sitting outside the Court and entered. She agreed that she had signed the notice of appeal but declined to adopt the submissions made by her husband in support of it, or at least refused to respond to my inquiry as to whether she did so. I invited her to make such submissions as she wished in support of her appeal. She claimed to be ill and made a number of irrelevant statements concerning her position. I do not mean to be critical of her in saying that the statements were irrelevant. No doubt she said things that were important to her. In any event, it seems appropriate that I treat the proceedings as having been conducted in the presence of the first and second appellants. However I cannot treat the third appellant as having appeared. That has no significance in connection with any order for costs.

13 The appeal by each of the three appellants will be dismissed. I order that each of the first and second appellants pay the first respondent’s costs of the appeal. There seems to be no reason why the third appellant should not be subject to a similar order. I order that the third appellant pay the first respondent’s costs of the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 19 March 2007

Counsel for the First Appellant:	The First Appellant appeared in person
Counsel for the Second Appellant:	The Second Appellant appeared in person
Counsel for the Third Appellant:	There was no appearance for the Third Appellant
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	There was no appearance for the Second Respondent
Date of Hearing:	21 February 2007
Date of Judgment:	21 February 2007