SBVC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 78 (26 May 2006)

Last Updated: 26 May 2006

FEDERAL COURT OF AUSTRALIA

SBVC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 78

MIGRATION – appeal from order of judge of this Court dismissing application for judicial review of decision of Refugee Review Tribunal affirming decision of Minister’s delegate not to grant appellant protection visa – no error in reasoning of Tribunal – appeal dismissed.


Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), s 36(2)


Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, cited

SBVC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

SAD 36 of 2006




LANDER, RARES AND BESANKO JJ
26 MAY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 36 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBVC APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	LANDER, RARES AND BESANKO JJ
DATE OF ORDER:	26 MAY 2006
WHERE MADE:	ADELAIDE

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.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	36 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SBVC APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	LANDER, RARES AND BESANKO JJ
DATE:	26 MAY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from an order of a judge of this Court by which he dismissed the appellant’s application pursuant to s 39B of the Judiciary Act 1903 (Cth) (‘Judiciary Act’) seeking the issue of constitutional writs directed to the second respondent, the Refugee Review Tribunal (‘RRT’).

2 The appellant is a citizen of the Peoples’ Republic of China. She arrived in Australia on 3 April 2005 on a business visitor’s visa (Sub-class 456). The appellant was refused immigration clearance at Sydney on the basis that she was not a bona fide business visitor. On 4 May 2005, she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (‘the Act’). On 13 May 2005, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa.

3 On 18 May 2005, the appellant applied to the RRT for a review of that decision. On 5 September 2005, the RRT affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa. On 7 December 2005, the appellant brought an application in this Court seeking review of that decision, pursuant to s 39B of the Judiciary Act. On 10 February 2006, the judge dismissed the application.

4 The appellant claimed that she was entitled to a protection visa by reason of the provisions of s 36(2) of the Act. She referred to the Refugees Convention as amended by the Refugees Protocol as those terms are defined in the Act (‘the Convention’). She claimed that she was entitled to such a visa because she had come to the adverse attention of Chinese authorities as a leading member of an underground Christian church in China.

5 The Tribunal was satisfied that:

1 the appellant developed an interest in Christianity in about 1997 and that she occasionally attended an official Christian church in Wuhan until she secured employment in Henan; and
2 thereafter, the appellant became involved with Christians in Henan and met with a small group twice weekly to engage in prayer, singing, and reading the bible.

6 However, the Tribunal did not accept that the appellant:

1 was a member of any particular underground church in China;

2 was detained, assaulted or harmed in any way by the authorities in China for any Convention reason;

3 was forced into hiding for a Convention reason;
4 was or is of any interest to the authorities in China.

7 The Tribunal took an adverse view of the appellant’s credibility on some key aspects of her claims. It referred to inconsistencies, contradictions and ‘implausibility’ that led it to conclude that the appellant was not a credible witness and it gave a number of examples. It is not necessary for us to repeat those examples, some of which are set out in the reasons for judgment of the judge.

8 The Tribunal concluded that there was no credible evidence to sustain a finding that the appellant was at risk of suffering serious harm in the reasonably foreseeable future if she returned to China.

9 The appellant’s case before the judge was that the Tribunal had asked itself the wrong question in that it had asked itself whether the appellant could avoid persecution by taking reasonable steps to avoid it, rather than what was said to be the proper question of whether the appellant had a well-founded fear of persecution if she returned to China. Reference was made to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 and, in particular, the observations of McHugh and Kirby JJ at 490-491[43] and 492[50] as follows:

‘The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

...

In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.’

10 The judge did not accept the appellant’s submission and nothing has been put on the appeal that persuades us that the judge was wrong. The Tribunal rejected the appellant’s case that the group of which she was a member subdivided into smaller groups in order to be ‘less noticeable to the police’. The Tribunal was clearly entitled to do that. This was not a case in which the Tribunal approached the matter by saying, either expressly or inferentially, that it was reasonable for the appellant to modify her behaviour so as to practise her religion without the risk of persecution. The Tribunal found that the meetings attended by the appellant involved small groups of people and that small groups were not targeted by Chinese authorities. It found that the appellant was not at risk from the Chinese authorities having regard to the way in which she practised her religion. In those circumstances, the Tribunal found, as it was entitled to do, that there was no credible evidence upon which it could conclude that the appellant was at risk of suffering serious harm in the reasonably foreseeable future if she returned to China.

11 The judge could detect no error in the reasoning of the Tribunal and nor can we.

12 There was one other matter, which was in fact a matter raised by the Court on the hearing of the appeal. The Tribunal made a finding that there was no independent evidence to the effect that the Chinese authorities targeted small Christian groups of the size and type described by the appellant. One item of evidence before the Tribunal was a report of the US State Department. That report states that groups that are small and unobtrusive are not of concern to the Chinese authorities. However, in the same passage, the following statement appears:

‘In other areas, house church meetings of more than a handful of family members are strictly proscribed.’

13 The question raised was whether, in view of this statement, the Tribunal’s finding is one which was open to it. The functions of the Tribunal included arriving at its own findings of fact on the material before it. The interpretation placed on the whole passage is one that was available to the Tribunal and reveals no jurisdictional error.

14 The appeal must be dismissed and the appellant must pay the first respondent’s costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate:

Dated: 26 May 2006

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Applicant:	-
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 2006
Date of Judgment:	26 May 2006