SZMNU v Minister for Immigration and Citizenship [2009] FCA 155 (27 February 2009)

Last Updated: 27 February 2009

FEDERAL COURT OF AUSTRALIA

SZMNU v Minister for Immigration and Citizenship [2009] FCA 155

SZMNU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 28 OF 2009

COWDROY J
27 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 28 OF 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMNU Appellant

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

JUDGE:	COWDROY J
DATE OF ORDER:	27 FEBRUARY 2009
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 28 OF 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMNU Appellant

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

JUDGE:	COWDROY J
DATE:	27 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Federal Magistrate Raphael delivered on 5 December 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 24 June 2008. The Tribunal’s decision 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 was born on 1 February 1966. The appellant arrived in Australia on 14 September 2007. On 29 October 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 25 January 2008. On 22 February 2008 the appellant applied to the Tribunal for a review of that decision.
3. The appellant claimed to fear persecution in the PRC because of his involvement with the Christian Shouters Church. He stated that he was deeply moved by an experience of a close friend whose brother had been rescued from a serious drug habit by the efforts of the Shouters Church. As a result of this, he stated that he began to help his friend spread the Gospel and to this end gave RMB 50,000 to the Church to finance a printing centre for religious materials. He claimed that in March 2006 this printing centre was discovered by the Public Security Bureau (‘the PSB’) and his friend and eight or nine others were arrested. All of the people arrested were imprisoned or transferred to labour camps though they did not reveal to the authorities that the appellant had also been involved in supporting the Church. During this time the appellant claims that he was interrogated by the authorities three times. He said that his friend was released in March 2007 but that the friend advised him that the friend’s brother had died at the hands of the police.
4. The appellant claimed that his friend then organised a protest before the 17th National Congress of the Communist Party, and the appellant had assisted in the organisation. He said he had contacted people who had relatives in jail or labour camps due to their political opinions or religious beliefs to lobby them to petition the government for their release. He also claimed to have been involved in preparing and signing a petition. The appellant claimed that he and his friend had also sent many letters to the PSB and other government agencies, urging them to provide proper medical treatment and release another friend (and church member) who had been previously arrested. The appellant said that in September 2007 the cousin of the church member who was imprisoned was arrested because she had been found sending a petition to the central government. Her husband was also arrested. The appellant then fled to Australia. The appellant claimed that the police came to his house after he fled and found two Shouters bibles.

THE TRIBUNAL DECISION

5. The Tribunal did not accept that the appellant was a witness of truth and found that he had created his claims in order to obtain a protection visa. The Tribunal accepted that the Shouters were an oppressed group in the PRC and that possession of Shouters bibles is treated severely, however, it noted a number of factors which led it to believe that the appellant’s claims to be involved with the Shouters were false. It noted that the appellant was unable to ‘explain what the Shouters bible was all about, other than to “do more good things”’. It found that a person who undertook such a risky activity in keeping forbidden Shouters bibles in his home and participating in spreading the Shouters’ message would at least be able to provide some information in relation to its contents.
6. The Tribunal noted that the appellant had not mentioned in his protection visa application that the authorities had searched his house after his departure from the PRC and found two Shouter bibles and had only raised such claim at the hearing. It concluded that had such claim been true, then some mention of it would have been made in the appellant’s visa application because of the severe consequences for those found with Shouters bibles in the PRC. The Tribunal did not accept the appellant’s explanations of this inconsistency because his explanations differed between that offered at the hearing and that given in a statutory declaration in reply to a letter sent to him by the Tribunal under s 424A of the Migration Act 1958 (Cth). It found that such claim was an invention in order to bolster the strength of the appellant’s evidence.
7. The Tribunal also referred to the inconsistency between the appellant’s oral evidence to the Tribunal to the effect that he had only signed one petition and not sent any other letters to the government, and his application for a protection visa where he claimed that he had sent many letters to the PSB and other relevant agencies seeking the release and proper medical treatment of his incarcerated friend. The Tribunal did not accept the appellant’s explanation of this inconsistency to the effect that he had not actually signed the other letters sent to the government.
8. The Tribunal did not accept the appellant’s general explanation for the inconsistencies in his account that occurred at the hearing, namely that he was nervous and stressed and thus could not recall events clearly. The Tribunal did not believe that he was nervous at the hearing, and noted that there was no medical evidence suggesting that he suffered from a condition that would affect his ability to recall facts clearly or properly under a condition of stress.
9. The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

10. By application filed in the Federal Magistrates Court of Australia on 21 July 2008 the appellant sought judicial review of the Tribunal’s decision. The appellant alleged that the Tribunal ignored his motivation for having undertaken the risky activity of keeping forbidden Shouters bibles in his home; unfairly focused on his failure to mention in his protection visa application the fact that he had two Shouters bibles in his house and that the authorities had found these; that it did not give him an opportunity to provide medical evidence or advise him that medical evidence was required to support his claim that he suffered nervousness and stress in the Tribunal hearing and thus could not remember details of his claim; and that the Tribunal had too easily dismissed his explanation regarding the inconsistency in his accounts of whether he had sent multiple petitions to the government. Federal Magistrate Raphael noted that the grounds of the application all appeared to challenge the Tribunal’s fact finding rather than indicating the jurisdictional error into which the Tribunal was said to have fallen.
11. Raphael FM found that the Tribunal concluded that the appellant was not a credible witness for reasons which were made upon a reasonable basis, and it was not open to the Court to disturb those findings. Having found no jurisdictional error, Raphael FM dismissed the application.

APPEAL TO THIS COURT

12. On 13 January 2009 the appellant filed in this Court a Notice of Appeal from the decision of Raphael FM. The appellant raises the following grounds of appeal:
    1. Refugee Review Tribunal did not make fair decision for my application
    2. I gave all details about my claims but the Judge refused my application on my hearing date. It is not fair. I am Christian. I will be persecuted if I return to China.
    3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.

SUBMISSIONS OF THE APPELLANT

13. The appellant appeared before this Court unrepresented but had the assistance of an interpreter. In respect of the first ground of appeal, namely that the Tribunal ‘did not make a fair decision’ the appellant submitted that the Tribunal did not pay sufficient attention to his application. The appellant said that he had nothing to say in relation to the second and third grounds of appeal.
14. The appellant also submitted a ground that was not incorporated in the Notice of Appeal, namely that the interpreter which had been provided to him for the hearing before the Federal Magistrate was not able to interpret a document correctly.

FINDINGS

15. As to the first ground of appeal it appears that the appellant again seeks to challenge the factual findings of the Tribunal. The Court is unable to revisit the findings of the Tribunal or conduct a merit review of its findings: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67].
16. Without particulars it is impossible to discern any basis for the appellant’s claim. The Tribunal’s reasons are detailed and thorough. The Tribunal considered each of the appellant’s claims relating to his involvement in the Shouters Church and also considered independent country information concerning such Church.
17. The Tribunal’s reasons demonstrate that it assessed the appellant’s claims but found that he was not a witness of truth. It provided reasons for this, namely that the appellant displayed a lack of knowledge of the Shouters bible; that he had not adequately explained his failure to mention in his protection visa application that two Shouters bibles had been found in his home by the authorities; and that he had failed to adequately explain the significant inconsistency between his statutory declaration and oral evidence regarding his petitioning of the government on behalf of an imprisoned friend.
18. The Tribunal rejected the appellant’s claims and found that they were fabricated in order to obtain a protection visa. The only ground upon which this Court could disturb such a finding by the Tribunal would be to find that there was no evidence to support the findings of fact made by the Tribunal: see Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321 and 367 as per Deane J. The Tribunal, as has been shown, has provided adequate evidence to support its findings of fact.
19. Before the Federal Magistrates Court the appellant claimed that the review was unfair. However, Raphael FM found that since the Tribunal had rejected the appellant’s claims on the ground that the appellant was not a credible witness it was not open to the Court to disturb those findings. This Court would come to the same conclusion.
20. The Court cannot make any findings in relation to ground two since no submissions were made in relation thereto. The Tribunal has made a factual finding that the appellant will not suffer persecution if he returns to the PRC because he is not involved in the Shouters Church and this Court, for reasons already stated, cannot disturb this finding. Further, the Court notes in relation to the statement in the second ground that the appellant is a Christian contradicts what was said before Raphael FM. ‘Before me today the applicant claimed that the review was unfair for the reasons explained in the application but also because he told the Tribunal and the Department that he was not a Christian, nor a member of the local church.’
21. With regards to the third ground the Court is again unable to make any findings in the absence of any particulars by the appellant as to the unreasonableness claimed.
22. As to the claim by the appellant in Court that the interpreter had difficulty in interpreting a document before the Federal Magistrates Court, no mention of such difficulty is referred to in either the Notice of Appeal or in the judgment of the Federal Magistrate. The appellant did not provide any particulars of this claim, such as which document the interpreter had difficulty with and why this was significant to the decision of the Federal Magistrate. The appellant has not sought to tender a transcript of the hearing before the Federal Magistrate, and without such evidence the Court is unable to determine the accuracy and significance of this claim of the appellant. For these reasons the Court considers that such claim lacks any merit.
23. It follows that the appeal must be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 27 February 2009

Counsel for the Appellant:	Appellant appeared in person
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	25 February 2009
Date of Judgment:	27 February 2009