SZMDA v Minister for Immigration & Citizenship [2008] FCA 1689 (13 November 2008)

Last Updated: 13 November 2008

FEDERAL COURT OF AUSTRALIA

SZMDA v Minister for Immigration & Citizenship [2008] FCA 1689

SZMDA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1212 of 2008

EDMONDS J
13 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1212 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMDA Appellant

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

JUDGE:	EDMONDS J
DATE OF ORDER:	13 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1212 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMDA Appellant

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

JUDGE:	EDMONDS J
DATE:	13 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 This is an appeal from a decision of the Federal Magistrates Court, delivered on 17 July 2008: SZMDA v Minister for Immigration & Anor [2008] FMCA 961, dismissing an application seeking judicial review of a decision of the second respondent (‘the Tribunal’) handed down on 18 March 2008. The Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a Protection (Class XA) visa.

BACKGROUND

2 The appellant is a citizen of the Peoples Republic of China (‘PRC’) and arrived in Australia on 16 August 2007. On 26 September 2007, the Department of Immigration and Citizenship received an application for a protection visa from the appellant.

3 In answer to the questions on his original application seeking reasons for his claims of being a refugee, the appellant annexed a statutory declaration containing his claims that were, inter alia, as follows:

(1) The appellant was a member of an underground Catholic church in China;

(2) in order to avoid attention from PRC authorities, Bible studying, group gatherings and masses were held in secret places that frequently changed;

(3) the appellant distributed ‘Catholic promotion material’ with the assistance of three young Catholics;

(4) the appellant was arrested by the Police Security Bureau (‘PSB’) in the evening of 4 March 2007 and was detained for three weeks where he was mentally and physically mistreated by the police. The appellant was also questioned by the PSB ten times between March 2007 and when he left China; and

(5) after the appellant left China, five Catholics were arrested by the PSB and their confession led the PSB to discover the appellant’s involvement in the underground church. The appellant claimed that he has been blacklisted and would be persecuted if he returned to China.

4 On 29 October 2007, a delegate of the Minister refused to grant the appellant a protection visa.

5 On 29 November 2007, the Tribunal received an application for review of the delegate’s decision. On 7 February 2008, the appellant attended and gave oral evidence at a hearing before the Tribunal. At the hearing before the Tribunal, the appellant did not make any new claims. The appellant gave evidence in support of the claims in his statutory declaration and was questioned extensively by the Tribunal member. The appellant submitted further material to the Tribunal on 21 February 2008.

6 The Tribunal handed down its decision on 18 March 2008, affirming the decision of the delegate.

THE TRIBUNAL’S DECISION

7 The Tribunal set out the relevant legislative requirements and then summarised the appellant’s claims and oral evidence. The Tribunal was sufficiently satisfied that the appellant was not a witness of truth and rejected as false the appellant’s claims to invoke protection obligations in Australia. The Tribunal did not find the appellant to be credible on some key aspect of his claims and made the following findings specific to them:

(1) The Tribunal did not accept that the appellant was involved in the distribution of any secret material relating to the underground Catholic Church in China;

(2) The Tribunal did not accept that the appellant was arrested, detained and mistreated;

(3) the Tribunal did not accept that the appellant’s named acquaintance was arrested and detained as the appellant had claimed;

(4) the Tribunal did not accept that the appellant was questioned by police at any time prior to leaving China in August 2007 or that the authorities in China had any adverse interest in the appellant as claimed;

(5) the appellant’s evidence that he was able to leave China on his own passport, unhindered, lead the Tribunal to conclude that he was not of adverse interest to the Chinese authorities and the Tribunal did not accept that the appellant had been placed on a ‘blacklist’ in China;

(6) the Tribunal did not accept that the appellant’s family and other persons of interest were investigated by the PSB because of the appellant; and

(7) after considering the material submitted to the Tribunal on 21 February 2008 and in light of the appellant’s evidence, the Tribunal was not satisfied that the statements relating to the appellant’s material claims in the documents were true.

8 The Tribunal found that there was no credible evidence on which it could be satisfied that the appellant stood at risk of suffering serious harm in the reasonably foreseeable future if he returned to China. Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he returned to China.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

9 The Federal Magistrate dismissed the application on the basis that no jurisdictional error on the part of the Tribunal had been demonstrated. His Honour made the following findings:

(1) The Tribunal’s findings as to the appellant’s lack of credibility were based on the appellant’s evidence at the hearing and it was clearly open to the Tribunal to make those findings, on that evidence.

(2) In response to ground 1 of the application, there was no evidence in support of the appellant’s contention that the Tribunal was biased and, if the ground was intended to contend that the Tribunal failed to consider a relevant matter or integer of the appellant’s claims, no particulars were provided in support of such a claim.

(3) There was no denial of procedural fairness, as set out in any of the sections of Div 4 of Pt 7 of the Migration Act 1958 (Cth) (‘the Act’), particularly since:

(a) the Tribunal complied with s 425 of the Act by inviting the appellant to a hearing, providing him with an interpreter and in circumstances where the issues before the Tribunal were the same issues upon which the Minister’s delegate made the decision to refuse the application;

(b) there was no breach of s 424A(1) in circumstances where the Tribunal based its decision on evidence given by the appellant to the Tribunal and on independent country information; and

(c) the Tribunal complied with the requirements of s 424AA of the Act.

(4) The Tribunal considered all of the appellant’s evidence and material in support of his application.

(5) The Tribunal did not misunderstand the appellant’s claim to have distributed ‘Church material in secret’ and the Tribunal’s reference to ‘secret Church material’ was a distinction without a difference.

(6) The Tribunal did not ignore the applicant’s alternative claim of persecution, namely, an opposition to the Chinese political regime, in circumstances where the appellant’s comments about the Chinese political regime were not nearly sufficient to represent a claim of a well-founded fear of persecution for reason of political opinion.

(7) The appellant did not at any stage claim that he feared persecution if he returned to China because he attended a Catholic church in Australia and the Tribunal was not required to consider a claim that was not expressly made and did not clearly arise on the material before it.

(8) The Tribunal accepted that the appellant had been attending a Catholic church in Australia, however, there was no obligation for the Tribunal to make any finding in relation to this under s 91R(3) of the Act.

(9) Even if a document had been excluded from the Court Book, that did not, of itself, constitute any jurisdictional error. His Honour held that, in any event, there were two letters from priests in the Court Book and another from the Columban Mission Institute, that were considered by the Tribunal.

10 His Honour held that the appellant had not made out any jurisdictional error and, on an independent reading of the Tribunal’s decision, could not discern any arguable jurisdictional error. The application was dismissed with costs.

THE APPEAL TO THIS COURT

11 The Notice of Appeal, filed in this Court on 4 August 2008, raises three grounds of review. The Minister submitted that the Notice of Appeal fails to identify any error of law on the part of the Federal Magistrate or any jurisdictional error on the part of the Tribunal.

12 In response to ground 1 of the appeal, the Minister submitted that there was no evidence to support any assertion that the Federal Magistrate was biased in this case. I agree. There was nothing on the face of the decision to indicate that the Federal Magistrate had a mind ‘incapable of alteration’ (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 532) or that a ‘fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided’ (Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 cited by Kenny J in VFAB v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102).

13 Ground 2 of the appeal appears to take issue with the procedure adopted by the Federal Magistrate in handing down judgment on the application for review. The Minister made two submissions in response to this contention. First, this ground of review fails to disclose any appellable error on the part of the Federal Magistrate and fails to identify any jurisdictional error on the part of the Tribunal. Secondly, and in any event, the appellant’s contention is factually incorrect. The application was heard by the Federal Magistrate on 23 June 2008. The Minister was granted leave to file and serve any further written submissions directed specifically to the submissions made in the appellant’s document handed to the Federal Magistrates Court during the hearing by 1 July 2008. The reasons for judgment of the Federal Magistrate were handed down on 17 July 2008, and not delivered ex tempore at the hearing of the application. The Minister submitted that there was no appellable legal error in the procedure adopted by the Federal Magistrate. Again, I agree.

14 Ground 3 of the appeal contends that the Federal Magistrate did not consider the appellant’s application reasonably. This grounds appears to be similar to the appellant’s submission in his affidavit annexed to his notice of appeal:

The judge did not consider all information provided at my hearing. I have no chance to provide more evidence and my case was dismissed.

15 The appellant has failed to particularise this ground of review and, in the absence of particulars, fails to disclose any appellable error. The Minister submitted that a fair reading of the Federal Magistrates decision does not indicate that the Federal Magistrate did not consider all the information put before the Court or that the appellant was denied the opportunity to tender evidence relevant to the application for review. I agree.

16 The Minister submitted, correctly in my view, that the findings of the Tribunal were clearly open to it on the evidence before it and that his Honour was correct in finding that its decision was not affected by jurisdictional error. No appellable error in the decision of the Federal Magistrate has been demonstrated.

CONCLUSION

17 The appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated: 13 November 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	11 November 2008
Date of Judgment:	13 November 2008