SZHID v Minister for Immigration and Citizenship [2008] FCA 128 (21 February 2008)

SZHID v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD817 OF 2007

COLLIER J
21 FEBRUARY 2008
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD817 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHID Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	21 FEBRUARY 2008
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD817 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHID Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	COLLIER J
DATE:	21 FEBRUARY 2008
PLACE:	BRISBANE (HEARD IN SYDNEY)

1 This is an appeal against the decision of Nicholls FM delivered 19 April 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2 The appellant’s notice of appeal does not nominate the Tribunal as a respondent. As is clear from the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 16, the Tribunal should be joined as a respondent. Accordingly, I order that the Tribunal be joined as a respondent to these proceedings.

3 The appellant is a citizen of the People’s Republic of China who arrived in Australia on 12 December 2004. On 24 January 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). A delegate of the first respondent refused the application for a protection visa on 9 April 2005. On 3 May 2005 the appellant applied to the Tribunal for a review of that decision.

4 The appellant claimed to have well-founded fear of persecution on various bases, namely:

• having been fined at a greater than usual amount for having a second child outside of the "one-child" policy in China

5 The appellant claimed to have come from a Christian family. He claimed that his grandfather and grandmother were both Christians who were persecuted during the Chinese Cultural Revolution for their religious beliefs. He claimed that he was born Christian, was baptised and attended church since childhood. He claimed that Christianity was divided into two sects in China, one group showed loyalty to the Chinese Communist Party whilst the other wanted "genuine" Christianity. He claimed that his father was a leader of the "Free Christianity group". He claimed his father was warned and targeted after he objected to the Communist control of local Christians.

6 The appellant claimed he was influenced by his father’s faith in free Christianity. He claimed that in 2002 he wanted to build a new church and asked other Christians for donations. He claimed to have come to the adverse attention of the authorities, and that the authorities would come to his house and his workplace to question him.

7 The appellant claimed that his wife gave birth to a child outside of China’s one-child policy on 1 April 2003, and that the birth was reported to the authorities. The appellant claimed his employer requested he should resign from his employment for that reason.

8 The Tribunal could not be satisfied of the appellant’s claims regarding his Christianity, the one-child policy or the reasons he left China, because it did not accept he was a witness of truth. It came to this conclusion for the following reasons:

• the Tribunal found that the appellant had claimed his father and grandfather were Christians but was "unable to tell the Tribunal anything about the Christian religion and his practice thereof"

• the Tribunal did not accept the appellant was fined for breaching the one-child policy or that the authorities were looking for him for that reason because the appellant continued with his usual job and lived at the family home until leaving China, and left without difficulty using a passport in his own name and these actions were inconsistent with his claims of persecution.

9 The Tribunal also considered the appellant’s departure from China and made the following finding:

10 The Tribunal found no plausible evidence to support the claims of persecution and consequently was not satisfied the appellant had well-founded fear of persecution.

11 On 12 October 2005 the appellant filed an application for judicial review of the Tribunal’s decision. The application contended the Tribunal failed to properly consider the claims concerning the one-child policy and underground Christianity and challenged the Tribunal’s adverse view of the appellant’s credibility in relation to his knowledge of Christianity. At the hearing the appellant claimed the Tribunal refused his application because he was not familiar with Christianity, that he resided at the same address and had not changed his job. The appellant also stated he could not express himself ‘well’ at the hearing. He also contended the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) ("the Act").

12 The Federal Magistrate was of the view that, on the material, the Tribunal clearly understood the appellant’s claim; it identified the claims of religion and breach of the one-child policy and identified a third, namely of being asked to resign. After understanding the claims, the Tribunal could not be satisfied the appellant was a witness of truth and that such findings were open to it on the evidence. Furthermore, the Tribunal was not obliged to consider country information as it did not accept his claims that he was Christian or that he was fined in relation to the birth of his second child.

13 In relation to the credibility findings, the Federal Magistrate was of the view that the Tribunal did test the appellant on his knowledge of Christianity and there was no obligation on the Tribunal to have conducted more inquiries into the matter. On the other hand, there was no obligation to uncritically accept the appellant’s claims and it was open to the Tribunal to base its credibility findings on the testing of the appellant’s knowledge. The Federal Magistrate also found the appellant was given an opportunity to respond to the Tribunal’s concerns relating to matters relevant to the issue of the appellant’s credibility. The Tribunal had directed the appellant’s attention to the fact that it found it difficult to accept his claims relating to:

14 In relation to the alleged breach of s 424A of the Act, the Federal Magistrate found there was no obligation on the Tribunal to give the appellant in writing information provided to the Tribunal by the appellant. Furthermore, although some information relied on by the Tribunal was contained in the protection visa application that same information had also been given by the appellant at hearing.

15 However, his Honour gave further consideration to s 424A of the Act which was not raised by either the appellant or the respondent. His Honour considered whether the following finding by the Tribunal revealed some reliance on inconsistency which may have been part of the decision:

16 His Honour formed the view that there was not a breach of s 424A(1) of the Act. The Tribunal’s finding that it did not accept that the authorities came to his home after the visa was issued was not based on the Tribunal comparing the appellant’s account at the hearing with some prior statement absent information subsequently provided to the Tribunal. While the Tribunal recognised the appellant had made this claim initially at hearing, its finding was based on the inconsistencies inherent in what the appellant had stated at the hearing. Accordingly, his Honour found the information came under the exception in s 424A(3)(b) of the Act.

17 By Notice of Appeal filed on 10 May 2007, the appellant raised only one ground of appeal from the decision of his Honour, namely:

18 At the hearing of the appeal before me the appellant emphasised that he was a Christian in China, that his grounds of appeal were based on truth, that he had had difficulty answering questions at the Tribunal hearing because he was nervous, and that he believed that he would be persecuted if he returned to China.

19 In my view there is no substance to the ground of appeal raised by the appellant. I accept the submissions of Ms Morgan for the first respondent that:

• the appellant has not identified the "information" which the Tribunal allegedly used and upon which the Tribunal ought to have invited the appellant to comment pursuant to s 424A, and

• the learned Federal Magistrate carefully considered the claim of the appellant with respect to a possible breach of s 424A, and found that no such breach had occurred.

20 The appellant has also failed to articulate the manner in which his Honour "failed to deal with his claims properly". From reading his Honour’s judgment I am unable to identify any way in which his Honour failed to properly consider the appellant’s claims.

21 In my opinion, the approach of the Federal Magistrate and his Honour’s conclusions were correct and should not be disturbed.
THE COURT ORDERS THAT:

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Appellant:	The appellant appeared in person

Counsel for the Respondent:	KL Morgan

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	20 February 2008

Date of Judgment:	21 February 2008

Federal Court of Australia

SZHID v Minister for Immigration and Citizenship [2008] FCA 128 (21 February 2008)