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Federal Court of Australia |
Last Updated: 28 February 2008
FEDERAL COURT OF AUSTRALIA
SZHDZ v Minister for Immigration and Citizenship [2008] FCA 140
SZHDZ
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD1906 OF 2007
COLLIER J
22 FEBRUARY
2008
BRISBANE (HEARD IN SYDNEY)
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZHDZ
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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COLLIER J
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DATE:
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22 FEBRUARY 2008
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PLACE:
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BRISBANE (HEARD IN SYDNEY)
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REASONS FOR JUDGMENT
1 This is an appeal against a judgment of a Scarlett FM of 3 September 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") signed on 3 August 2005 and handed down on 23 August 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as it was then known) to refuse grant of a protection visa to the appellant.
2 At the hearing of this matter this morning there was no appearance by the appellant. I asked the court officer to call the matter outside the Court but there was no response.
3 Mr Kennett for the respondent sought leave to file an affidavit sworn by Pua Soliola, an administrative assistant with DLA Phillips Fox, solicitors for the first respondent, deposing that a copy of the first respondent’s written submissions, together with a covering letter advising the appellant of the date and place of this morning’s hearing, had been couriered to the appellant on 19 February 2008. I am satisfied that all reasonable steps have been taken to inform the appellant of the time, date and place of today’s hearing.
4 My associate endeavoured to contact the appellant on the telephone number notified by the appellant and spoke with a person who identified himself as a friend of the appellant and who said that the appellant was ill today and unable to attend Court. No application has been made by the appellant for an adjournment of this hearing.
5 Notwithstanding the failure of the appellant to appear in Court this morning I consider it both possible and appropriate to give judgment on this appeal based on the material before me.
Background and the Tribunal’s decision
6 The appellant is forty-eight year old man who is a citizen of the People’s Republic of China and was born in Fujian province, China. He arrived in Australia on 20 December 2004 and lodged an application for a protection visa on 9 March 2005.
7 The appellant claimed to have well-founded fear of persecution from the Chinese authorities for his religious beliefs and membership of an illegal church, the Shouters Church. He claimed to have distributed bibles and other materials to different secret points in parts of Fujian and regularly attended gatherings organised by the church. In August 2003 the appellant claimed police raided a secret gathering at a member’s house and the appellant managed to escape by the back door. He claimed he went into hiding for six months in a relative’s home in another village and that his home was searched and family members taken to the police station for questioning. The appellant claimed he got a new identity and that his new name was Wu Yazai. The appellant claimed to have been assisted by the local Shouters’ church in going overseas.
8 In his application for review to the Tribunal on 26 April 2005 the appellant indicated he did not need an interpreter but continued to complete the language component of the form, indicating his language to be Chinese Mandarin. On 4 July 2005 the Tribunal invited the appellant to attend a hearing scheduled for 2 August 2005. The appellant attended a hearing before the Tribunal on 2 August 2005 with the assistance of the court appointed interpreter Ms Linda Chen. A copy of the Tribunal hearing record indicates that the language of the interpreter is "Fuzhou/Mandarin".
9 The Tribunal noted that there was some concern about the identity of the appellant. However while accepting that the appellant was from China, there was a question as to his actual name. The Tribunal found that notwithstanding his claim, from his limited and unsupported claims and his total ignorance of the Christian faith and the Shouter denomination, the Tribunal was not able to be satisfied that the appellant was a pious Christian and active member of the Shouter underground church in his Province. The Tribunal found that the appellant had embellished his claims for the purpose of enhancing his claims for a protection visa. The Tribunal found he was not a credible witness and consequently was not satisfied he had well-founded fear of persecution for a Convention reason.
Application for review before the Federal Magistrate
10 By further amended application filed on 14 November 2006 the appellant sought to challenge the Tribunal’s decision on four bases as follows:
1. Denial of procedural fairness through provision of a Mandarin interpreter where the appellant’s first language is Fujian.
2. Failure to properly determine whether there was persecution for transporting illegal religious material.
3. Jurisdictional errors as to the findings on the evidence going to credibility.
4. Failure to comply with s 424A of the Migration Act 1958 (Cth) ("the Act").
11 Counsel for the first respondent relied on three affidavits to support the Minister’s case. The first affidavit annexed a copy of the transcript of the Tribunal hearing and a second annexed a copy of the Tribunal hearing record. The third affidavit was deposed by Ms Linda Chen, the interpreter for the appellant at the Tribunal hearing on 2 August 2005.
12 In her affidavit Ms Chen set out details of her qualifications, and deposed that she recalled that she had had no difficulty understanding the appellant and nor did it appear that he had difficulty understanding her at the hearing.
13 The Federal Magistrate was not satisfied the appellant had proven there was such a deficiency by the interpreter that the appellant had been denied a fair hearing. His Honour preferred the evidence of Ms Chen to that of the appellant and did not find the appellant’s evidence about what happened at the Tribunal hearing to be credible.
14 The Federal Magistrate was not of the view that the other grounds of review established jurisdictional error. The second ground complained of lack of logic in arriving at the factual findings but his Honour was not persuaded this had occurred. The third ground cavilled with the factual findings of the Tribunal. The fourth ground related to the Tribunal’s doubts as to the appellant’s identity and occupation and related to the appellant’s passport which fell within the exception in s 424A(3)(b) of the Act.
On Appeal to this Court
15 On 24 September 2007 the appellant filed a notice of appeal in this Court appealing the whole of the judgment of Scarlett FM.
16 The notice of appeal raised the following ground:
"The Refugee Review tribunal committed legal errors of law and it did not comply with the certain sections of the Migration Act 1958."
17 No particulars were provided by the appellant, and no written submissions have been filed by him.
18 By written submissions Mr Kennett for the first respondent has submitted, in summary, that:
• there is no error in the conclusions of the Federal Magistrate with respect to the ability of Ms Chen to present the appellant’s case to the Tribunal
• it is clear that the Tribunal addressed the appellant’s claims, and rejected as implausible his account of the circumstances in which he left China and his claims that he was a Christian who drove and delivered bibles and illegal religious material in Fuqing City. Although the appellant contends that the Tribunal’s conclusions in this context were illogical
o it is well-established that a lack of logic does not in itself constitute an error of law or a ground for judicial review, and
o in any event, the Tribunal’s reasons viewed as a whole do not show a lack of logic
• to the extent that the appellant before the learned Federal Magistrate contended that the Tribunal had made factual errors, this does not constitute a ground for judicial review
• the observation made by the Tribunal during the hearing in relation to the doubt as to the identity and occupation of the appellant was not "information" which formed any part of the reason for affirming the delegate’s decision. The information upon which the Tribunal’s adverse conclusions rested was, as noted by the Federal Magistrate, the appellant’s passport which had been produced at the Tribunal hearing and thus came within s 424A(3)(b).
19 I have considered his Honour’s judgment and the decision of the Tribunal. I accept the submissions of the first respondent. In my opinion, no error is demonstrated in his Honour’s reasons or conclusions.
20 The appeal should be dismissed with costs.
Associate:
Dated: 22
February 2008
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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