SZMJV v Minister for Immigration and Citizenship [2008] FCA 1709 (12 November 2008)

Last Updated: 19 November 2008

FEDERAL COURT OF AUSTRALIA

SZMJV v Minister for Immigration and Citizenship [2008] FCA 1709

Migration Act 1958 (Cth), ss 65, 91R(3), 414(1)

SZMJV v Minister for Immigration & Anor [2008] FMCA 1213 upheld
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 followed and applied
SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 followed and applied
SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280 cited






















SZMJV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1455 of 2008

FOSTER J
12 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1455 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMJV Appellant

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

JUDGE:	FOSTER J
DATE OF ORDER:	12 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent.

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 1455 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMJV Appellant

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

JUDGE:	FOSTER J
DATE:	12 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate (SZMJV v Minister for Immigration & Anor [2008] FMCA 1213) delivered on 27 August 2008 following a hearing which took place on that day. The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") delivered on 19 May 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship ("the first respondent") to refuse a protection visa to the appellant.

2 When the matter was called on before me this morning, there was no appearance either by or on behalf of the appellant. The matter was stood in the list for a time. During that time, Ms Sirtes, Counsel for the first respondent, attempted to telephone the appellant but was unable to make contact with him. In those circumstances, I decided to deal with the appeal in the absence of the appellant.

3 The appellant is a citizen of China who arrived in Australia on 3 September 2007. On 26 September 2007 the appellant lodged an application for a protection visa with the first respondent. A delegate of the first respondent refused the application for a protection visa on 23 October 2007. On 15 November 2007 the appellant applied to the Tribunal for a review of that decision.

4 Before the Tribunal the appellant claimed to have a well-founded fear of persecution by reason of his participation in an underground church in Fujian Province, China. He claimed that he had been baptised a Christian in 1992. He claimed that he practised with a church that formed part of the Three Self Church until 2000 at which time he started practising his faith in an underground church. He claimed that he attended house gatherings which were held in secret. The appellant went on to claim that in January 2007 he and others were arrested while at a house church gathering. He said that he had been detained for one month during which time he was beaten and pressured to recant his religion.

5 The appellant was released after his wife paid the police, so he said. He also claimed that the police continued to come to his house to check on him and to harass him. He said that he was fearful from that time and arranged for a visa to come to Australia.

6 The Tribunal accepted that the appellant was a Christian and that he had worshipped as part of the approved Christian church in China. It also accepted that he had participated in activities of a church in Sydney. The Tribunal did not accept that he left the approved Christian church in 2000 and attended underground church gatherings as he claimed.

7 The appellant’s evidence in that respect was found by the Tribunal to be inconsistent and unconvincing. His evidence as to the activities of the underground church was found to be implausible. The Tribunal did not accept that he had been arrested and detained in January 2007 as he claimed.

8 Accordingly, the Tribunal did not accept that the appellant had suffered past persecution for the reasons claimed and was not satisfied that he would suffer Convention-related persecution should he return to China.

9 In the proceedings before the Federal Magistrate the appellant claimed that the Tribunal failed to comply with the requirements of s 91R(3) of the Migration Act 1958 (Cth) ("the Act") and, secondly, that the Tribunal failed to exercise its jurisdiction in accordance with s 65 and s 414(1) of the Act because it had failed properly to review the appellant’s claims to be a refugee. In considering the Tribunal’s decision in light of the claims made by the appellant, the Federal Magistrate stated that it was implied in the Reasons of the Tribunal that the Tribunal was satisfied that there were reasons for the appellant’s conduct in attending church in Australia other than an attempt by the appellant to bolster his protection status.

10 His Honour noted that, although it would have been preferable for the Tribunal to have made an express finding of satisfaction as to the appellant’s motivation for his conduct in Australia, satisfaction could be implied from the Tribunal’s Reasons so as to support a conclusion that the Tribunal was not required to disregard the appellant’s conduct in attending church in Australia.

11 As far as the second ground raised before him, the Federal Magistrate found that the Tribunal accepted independent country information that practising Christians were not at risk of harm in China generally and not at risk of harm in the appellant’s province of Fujian.

12 His Honour found that there was nothing before the Tribunal to suggest that the appellant attended an unregistered or house church in Australia, and therefore there was nothing before the Tribunal that supported a need to consider a sur place claim based upon the appellant’s conduct in Australia.

13 In this Court the Notice of Appeal raises three grounds of appeal, namely, that:

(1) The Tribunal was biased against the appellant and did not make a fair decision;

(2) The learned Federal Magistrate unfairly refused the appellant’s application and did so on the day that it was heard (implying that further consideration should have been given to the appellant’s application); and

(3) The application before the Federal Magistrate was not considered reasonably and that the learned Federal Magistrate failed to consider the risk to the appellant should he return to China.

14 As I have already indicated, the appellant did not attend Court this morning. There were no submissions made by anyone on his behalf. The allegation of bias made here is a fresh allegation. That allegation was not agitated before the Federal Magistrate. It is a serious allegation which must be distinctly made and clearly proved (see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69]). It must also be borne in mind that bias on the part of the Tribunal will rarely be demonstrated or apparent from the Tribunal’s written reasons alone (see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16]).

15 The allegation of bias made here has not been distinctly made nor has any attempt been made to prove it. It must be rejected.

16 The remaining grounds raised in the Notice of Appeal have not been made out. There is no suggestion in any of the material before me that the learned Federal Magistrate behaved unfairly vis-à-vis the appellant or that there was anything unfair in the decision by the Federal Magistrate to deliver judgment ex tempore. Such a proposition would ordinarily be difficult to establish (see SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280).

17 The last ground is really a ground which seeks to re-agitate the merits of the Tribunal’s decision, a course which is impermissible in this Court.

18 For these reasons, in my view, there was no jurisdictional error committed by the Federal Magistrate. Accordingly the appellant’s appeal is dismissed 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 Foster.

Associate:

Dated: 18 November 2008

	The Appellant did not appear
Counsel for the First Respondent:	Ms SA Sirtes
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	12 November 2008
Date of Judgment:	12 November 2008