SZKIV v Minister for Immigration and Citizenship [2008] FCA 649 (15 May 2008)

Last Updated: 15 May 2008

FEDERAL COURT OF AUSTRALIA

SZKIV v Minister for Immigration and Citizenship [2008] FCA 649

SZKIV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 144 OF 2008

COWDROY J
15 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 144 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE OF ORDER:	15 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Appellant pay the costs of the First Respondent in the amount of $2,400 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).







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 144 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE:	15 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from the judgment of Federal Magistrate Lloyd-Jones delivered on 15 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 6 February 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2 The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 8 April 2006. The appellant claims to have a well-founded fear of persecution resulting from her religious beliefs.

3 The appellant claims that she joined a Bible study group in January 2004 organised by her factory manager Ms Z. She claims to have been baptised in May 2004. She claims that since that time she has been ‘a devote [sic] Christian and a firm member of Beijing Xibei Christian Underground Church’. She claims she has ‘been regarded as a key member in the underground church’. The appellant claims to have been involved in producing and distributing religious propaganda materials under the tutelage of Ms Z.

4 The appellant claims that in December 2004 she and other members of the church were arrested by the Public Security Bureau (‘PSB’) at Ms Z’s home. The appellant claims that they were imprisoned for one week, interrogated and forced to sign a confession. The appellant further claims that in September 2005 Ms Z’s cousin arrived from Taiwan with the intention of secretly transferring religious propaganda material to the Beijing Xibei Christian Underground Church. Ms Z’s cousin was arrested and sentenced to a ‘two year reform through labour’. The appellant claims to have been interrogated on five occasions between October 2005 and November 2005.

5 The appellant claims that in February 2006 her assistant was arrested, and as a result she went into hiding whilst Ms Z made arrangements for her to leave the PRC. The appellant claims that she left the PRC on 5 April 2006. She claims that her family and friends in the PRC have been questioned by the police regarding the appellant’s religious activities. The appellant also claims that Ms Z has been arrested. The appellant claims that she will be arrested if she returns to the PRC.

THE TRIBUNAL DECISION

6 In its decision handed down on 6 February 2007, the Tribunal noted that the appellant had been assisted by a friend named Si Si when preparing her application. The Tribunal found that the appellant’s evidence at the hearing was inconsistent with the details in her application relating to her place of residence in the PRC and the name of the church of which she was a member. The Tribunal found that such inconsistencies were not explicable as errors caused by Si Si’s assistance in the preparation of the appellant’s application.

7 After questioning the appellant at the hearing, the Tribunal found the appellant’s level of knowledge of the Bible was not consistent with her claim that she studied the Bible ‘usually once every week on Sundays’.

8 The Tribunal noted that the appellant had not mentioned the arrests made by the PSB at Ms Z’s home in December 2004 in either her statement to the Department of Immigration and Citizenship or in her subsequent statement to the Tribunal dated 16 November 2006. The Tribunal rejected the appellant’s explanation for such omissions and considered that had such an incident occurred the appellant would have included it in her written statements. The Tribunal accordingly found that the alleged raid on Ms Z’s home and the subsequent detention had not occurred.

9 In her statement to the Tribunal dated 22 December 2006 the appellant claimed that the interpreter at the hearing was occasionally unable to interpret accurately her answers and the Tribunal’s questions. However, the Tribunal confirmed the accuracy of the interpretation at the Tribunal hearing with an additional accredited interpreter. Accordingly the Tribunal did not accept that the appellant provided any plausible basis for her claim that the interpreter was inadequate.

10 The appellant also claimed in the same statement that the Tribunal’s manner of questioning ‘cut [her claims] into small pieces’ and prevented her from properly giving evidence. The Tribunal considered that it had striven to ensure that the appellant was given a reasonable opportunity to provide her oral evidence and submissions. It was not persuaded that by asking questions it had detracted from the opportunity to provide evidence. Rather, the Tribunal found that the appellant’s repeated behaviour in not answering questions and her repeated attempts to orally return to her written statement was indicative of fabrication. The Tribunal found that the appellant was not a credible witness.

11 The appellant’s lack of credibility and inability to display knowledge commensurate with her alleged Bible study and Christian beliefs led the Tribunal to find that the appellant was not a practising Christian in the PRC. In light of the above, the Tribunal was not satisfied that the appellant had well-founded fear of persecution for a Convention Relating to the Status of Refugees 1951 reason. The Tribunal accordingly affirmed the decision of the Minister’s delegate.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE

12 By application filed in the Federal Magistrates Court of Australia on 15 March 2007 the appellant sought judicial review of the Tribunal’s decision. The appellant raised three grounds of review:

(1) The Tribunal ignored the important evidence that I provide in support of my application. (2) The Tribunal failed to consider my claims, fairly and properly; or the Tribunal misunderstood my claims or identified a wrong issue in my case. (3) The Tribunal failed or refused to contact a real chance test; and the Tribunal failed or refused to consider my evidences, fairly and properly.

13 In relation to the second ground of review, the appellant asserted that the interpreter had made errors during the Tribunal hearing. Federal Magistrate Lloyd-Jones noted that the Tribunal had considered such alleged errors and had confirmed the accuracy of the interpretation before the Tribunal handed down its decision. His Honour was accordingly satisfied that no error occurred in the Tribunal decision resulting from any error in the interpretation during the hearing.

14 Lloyd-Jones FM found that the raised grounds of review were a re-agitation of the issues considered by the Tribunal. His Honour found that there was no discernable jurisdictional error in the Tribunal’s decision and accordingly dismissed the appellant’s application.

APPEAL TO THIS COURT

15 On 5 February 2008 the appellant filed a notice of appeal in this Court which raises three grounds of appeal as follows:

1. The Federal Magistrate erred in finding that the appellant had not identified any error in the Tribunal’s decision. The Federal Magistrate ignored the appellant’s evidence regarding this issue.

2. The Federal Magistrate failed to consider the appellant’s claims properly because the Tribunal misunderstood her claims or identified a wrong issue in her case. In particular, the Tribunal failed or refused to consider further evidence provided by the appellant to the Tribunal on 16 January 2007 relating to the alleged mistranslation during the Tribunal hearing.

3. The Federal Magistrate did not consider the appellant’s application for judicial review properly or fairly.

16 At the hearing of the appeal before this Court on 12 May 2008 the appellant appeared with the assistance of an interpreter. The appellant orally submitted that the Tribunal overlooked important facts and that the interpreter at the Tribunal hearing made an error in the translation of her testimony. The appellant alleged that the Tribunal was biased against her. The appellant also claimed that the severity of her alleged persecution in the PRC was evidenced by the fact that she had left her son in the PRC to escape such persecution.

FINDINGS

17 The Court observes that the allegation of bias was not raised in the notice of appeal nor was it alleged before the Federal Magistrate. Accordingly, leave is required to raise such issue: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]- [24]. In deciding whether leave should be granted, the relevant principle to be applied by the Court is whether it is expedient and in the interests of justice to allow the ground to be argued: see Iyer at [16]. Such consideration requires the Court to consider the merits of the ground raised: see Iyer at [24].

18 As has been repeatedly held in this Court, an allegation of bias or bad faith constitutes a serious allegation which must be clearly alleged and proved: see for example SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361.

19 No evidence was advanced in support of this ground and the Court accordingly considers that the ground has no merit. It follows that it is neither expedient nor in the interests of justice to grant leave to the appellant to raise the ground of bias.

20 The Court considers that the claim that the appellant allegedly left her son in the PRC in the custody of her grandmother does not support the appellant’s claim of persecution. The Court accordingly finds that such claim is irrelevant.

21 Ground one of the appellant’s notice of appeal asserts that the Federal Magistrate ignored the appellant’s claims. The same allegation had been made before the Federal Magistrate.

22 In rejecting such ground Lloyd-Jones FM found that the appellant’s particulars set out in support of such ground were simply a ‘re-agitation of the issues considered by the Tribunal at its hearing of 7 December 2007’. His Honour concluded that such particulars did not identify any error by the Tribunal and that the ground was unsustainable.

23 Nothing further has been presented before this Court to demonstrate that his Honour’s conclusion was erroneous and the Court accordingly dismisses such ground.

24 Ground two claims that the Federal Magistrate failed to consider the appellant’s claims properly and misunderstood her claims. The particulars to such ground claim that there may have been misunderstandings between the appellant and the Tribunal in relation to the questions which were asked of her. The appellant also claimed that she was very nervous at the hearing before the Tribunal.

25 The same argument was raised before the Federal Magistrate who concluded that it constituted an attempt to re-agitate the issues considered at the Tribunal hearing. In so far as allegations of misinterpretation by the interpreter are concerned, the appellant raised such issues before the Tribunal. The Tribunal noted that the appellant claimed that it was difficult for her to give her evidence completely and for these reasons it ‘strove to ensure that the applicant was given a reasonable opportunity to provide oral evidence and submissions’. However, the Tribunal rejected her claimed difficulties in interpretation and concluded that the appellant’s repeated behaviour in failing to answer questions and her continual attempts to refer to her written statement suggested to it that her evidence had been fabricated. For this reason the Tribunal concluded:

Accordingly, the Tribunal finds that the applicant has deliberately sought to mislead it in relation to her claims. This leads the Tribunal to conclude that she is not a credible witness.

26 Lloyd-Jones FM found that no error occurred as a result of any conduct of the Tribunal during the hearing before it. The Court, having considered the finding of the Tribunal, agrees with his Honour’s conclusion. The Court accordingly rejects the second ground of appeal.

27 As to the third ground of appeal, the appellant claims that her application for judicial review was not considered fairly and properly by the Federal Magistrate. No information is provided in support of such claim. Further, the decision of Lloyd-Jones FM demonstrates that each of her claims was thoroughly considered. The Court dismisses such ground of appeal.

28 It follows that the appeal must be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 15 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr Reilly
Solicitor for the First Respondent:	Mr Dworcan

Date of Hearing:	12 May 2008
Date of Judgment:	15 May 2008