SZLQJ v Minister for Immigration and Citizenship [2010] FCA 130 (24 February 2010)

Last Updated: 1 March 2010

FEDERAL COURT OF AUSTRALIA

SZLQJ v Minister for Immigration and Citizenship [2010] FCA 130

Citation:		SZLQJ v Minister for Immigration and Citizenship [2010] FCA 130
Appeal from:		SZLQJ v Minister for Immigration and Anor [2009] FMCA 968
Parties:		SZLQJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1202 of 2009
Judge:		BUCHANAN J
Date of judgment:		24 February 2010
Legislation:		Migration Act 1958 (Cth)
Cases cited:		SZLQJ v Minister for Immigration and Anor [2009] FMCA 968
Date of hearing:	8 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	15
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr T. Reilly
Solicitor for the Respondents:	Spark Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1202 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQJ Appellant

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

JUDGE:	BUCHANAN J
DATE OF ORDER:	24 FEBRUARY 2010
WHERE MADE:	SYDNEY

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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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1202 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQJ Appellant

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

JUDGE:	BUCHANAN J
DATE:	24 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of the People’s Republic of China. He arrived in Sydney on 1 August 1998 on a temporary business visa. One month later he lodged an application for a protection visa. The application was refused by a delegate of the predecessor of the first respondent (“the Minister”) on 23 September 1998 and on 29 January 1999 the delegate’s decision was affirmed by the Refugee Review Tribunal (“the RRT”). On 6 March 1999 a bridging visa which had been granted to the appellant expired and he became an unlawful non-citizen. The appellant remained in Australia and continued to work. On 7 March 2007 he was located and taken into detention.
2. On 9 May 2007 the appellant lodged a request for permission to apply again for a protection visa claiming that his migration agent had submitted false claims on his behalf in connection with the earlier application. On 13 March 2008 the Minister gave permission to the appellant to make a second application. A further application for a protection visa was submitted on 4 April 2008. The appellant claimed that he would be at great risk if returned to China because he had practised Christianity there in an underground church prior to coming to Australia. He claimed to have been subject to persecution because of his Christianity including having been imprisoned and tortured. The further application for a protection visa was refused by a delegate of the Minister on 19 May 2008.
3. The appellant, through a migration agent, applied to the RRT on 23 May 2008 for review of the delegate’s decision. On 12 August 2008 the RRT affirmed the delegate’s decision. In part, the RRT’s conclusions proceeded from consideration of his initial application for a protection visa and the fact that in that application no reference had been made to the appellant’s practice of Christianity. Although the appellant claimed that the contents of the earlier application were fabricated by his migration agent and that he was not responsible for them the RRT appeared influenced by the fact that he had signed the earlier application. An application for judicial review of the decision of the RRT was made to the Federal Magistrates Court of Australia (“FMCA”). On 24 November 2008, the FMCA, by consent, made an order that the matter be remitted for further consideration by the RRT because the contents of the first application for a protection visa were irrelevant in light of the Minister’s permission to bring a further application.
4. The RRT was reconstituted for the purpose of further consideration of the application to review the delegate’s decision of 19 May 2008. On 11 March 2009 the RRT again affirmed the delegate’s decision. The appellant’s claims were summarised in the third RRT decision in the following way:
   85. On the basis of his passport which he submitted to the Tribunal at the hearing I accept that the Applicant is a citizen of the People’s Republic of China, as he claims to be.
       
   86. The Applicant claims to have been deceived and misrepresented by a migration agent whom he engaged in 1998, and to have signed documents relating to his original applications for protection and review in September 1998 without knowing anything of their content. I accept that this is the case and, accordingly, I have disregarded the claims made by him in these applications for the purposes of the present review.
       
   87. The Applicant claims to fear harm in China because of his past involvement in an illegal underground church and his Christian activities in Australia. He claims he would continue to involve himself with illegal Christian worship if he returned to China and would also be harmed by the authorities for this reason.
       
5. The RRT was unpersuaded, after consideration of earlier interviews with the appellant and its own hearing, about the veracity of his claims of involvement with the Christian religion in China and in Australia. As to his involvement in China the RRT said:
   90. The Applicant claims his parents were Christians and that they operated an illegal underground church from the family home. He claims he became a Christian in 1990 and was baptised in 1992, at about twenty-two years of age. He claims to have been a member of his parents’ church as well as another illegal underground church for four years. He claims that in 1995 he and his wife began their own underground church, operating out of his parents’ home after his parents had gone to South Korea for a year. He claims this church was detected by the authorities in 2006 [sic], leading to his arrest and detention for six months. Some months after his release from this detention he claims to have begun a further illegal underground church with the help of a pastor from South Korea. This church was quickly detected, however, and the Applicant had to go into hiding for over a year before escaping to Australia.
       
   91. The Applicant’s account of these matters at the hearing was at times vague and confused. This was particularly noticeable in his account of his alleged involvement with his parents’ church, his founding of his own church on two occasions and his ability to evade arrest by going into hiding for a year. There were some inconsistencies over such matters as the date of his marriage and the associated timing of the founding of his first church, and the location of his place of hiding which, so far from being a remote area as suggested in his protection visa application statement, was revealed at the hearing to have been a suburb of Shenyang City itself. Even making allowance for the passage of time, these are matters which could reasonably be expected to have been of particular importance for the Applicant, relating as they do to his claimed religion and fear of serious harm, and the vagueness of his account of them raises some doubts as to the credibility of his claims.
       
6. The RRT went on to give a number of further specific examples of matters claimed by the appellant which were found not to have been persuasively explained. The RRT said:
   98. Taking all these considerations together I am not satisfied that the Applicant was a member or organizer of an underground church in China as he claims, or that he had any other involvement in illegal Christian activities. I am not satisfied that he was ever harmed by the authorities for such a reason, or that he ever went into hiding to escape the PSB. Nor am I satisfied there is any reason to believe the PSB have ever visited his wife, harassed her or other members of his family or otherwise shown interest in the Applicant since he left China. Given the central importance of these matters for his claim to fear persecution in China I find that this casts doubt over the credibility of his evidence in general.
7. As to his claimed involvement with the Christian religion in Australia the RRT said:
   102. As with his claims concerning his experiences in China, the Applicant’s account of his Christian practice in Australia was vague and confused at a number of points and I have concerns about the credibility of his claims in this area.
8. Again, further detailed examples were given before the RRT concluded:
   111. I have considered all the information before the Tribunal regarding the Applicant’s involvement with Christianity in Australia. On the basis of this information I am not satisfied that he did, in fact, attend a Korean Christian church in Campsie as he claims and I am not satisfied that he ever held religious meetings in his own home. As noted, I accept that he has involved himself with a range of Christian denominations both while in immigration detention and subsequently. However, as I am not satisfied that his claims of earlier involvement with Christianity are credible, and having regard to the circumstances of his later involvement, I am not satisfied that his conduct in engaging in Christian activity has been otherwise than to strengthen his claim to be a refugee. I am therefore required by subsection 91R(3) to disregard this conduct in assessing his claim to be a refugee.
9. The RRT summarised its conclusions as follows:
   112. In the light of all the information before the Tribunal I am not satisfied that the Applicant was a member or organiser of an underground church in China or that he was otherwise involved in illegal Christian activity. I am not satisfied that he was arrested for such a reason or that he was in any other way harmed or forced to go into hiding and pay a large amount of money to secure his departure from China. I am not satisfied that police have been harassing his family members or in any other way searching for him. Nor, in the light of these findings, am I satisfied there is a reach chance the Applicant would suffer serious harm in China because of any involvement with Christianity.
10. The appellant again made an application for judicial review of the decision of the RRT to the FMCA. The sole ground of the application was:

The Tribunal erred when showing apprehended bias by reason of pre-judgment

11. In an affidavit filed with the application for judicial review the appellant complained that he had been given an insufficient opportunity to present his case. The contents of the affidavit are set out in the judgment of the FMCA (SZLQJ v Minister for Immigration and Anor [2009] FMCA 968 at [34]). The Federal Magistrate concluded that a transcript of the RRT hearing, which was admitted into evidence before the FMCA, did not support the allegations made in the appellant’s affidavit. Detailed reasons were given. As a result the allegation of apprehended bias was rejected. Further complaints made at the hearing before the FMCA were also rejected as unsupported upon a fair examination of the proceedings before the RRT. The FMCA concluded (at [88]):

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; and, had regard to all evidence and material provided in support, including oral evidence from the Applicant’s witness and submissions by the Applicant’s adviser, both of whom attended and spoke at both hearings. The Tribunal put to the Applicant matters of concern it had about his evidence, both at the hearings and in writing, and noted the Applicant’s oral and written responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

12. In order for the present appeal to succeed it would be necessary for the appellant to show that the FMCA had erroneously concluded that the RRT had not committed jurisdictional error. The appeal to this Court relies upon the following grounds:
    1. The Federal Magistrate failed to find that the Second Respondent’s decision was affected by bias and findings based on the Tribunal Member’s subjective speculations.
       
    2. The Second Respondent failed to conduct a fair hearing but instead reached adverse findings which are not substantiated by any evidence.
13. These grounds are so vague as to be unhelpful without the provision of details or particulars. Notwithstanding a direction to the appellant made on 27 October 2009 to file a written submission in support of the appeal, no written submissions were filed before the hearing of the appeal.
14. At the hearing of the appeal the appellant’s initial contribution was to assert, without elaboration, that the RRT had made an unfair judgment and exhibited bias. When he was prompted to say anything further he wished taken into account he asserted simply that he was a Christian who faced persecution in China and asked for a fair outcome of his appeal. No attempt was made to address the comprehensive reasons of the FMCA.
15. No error in the judgment of the FMCA has been demonstrated. In particular, the appellant did not identify any respect in which the processes or decision of the RRT were affected by jurisdictional error. The appeal must be dismissed with costs.
    

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 24 February 2010