SZIOH v Minister for Immigration & Citizenship [2008] FCA 229 (5 March 2008)

Last Updated: 7 March 2008

FEDERAL COURT OF AUSTRALIA

SZIOH v Minister for Immigration & Citizenship [2008] FCA 229

Migration Act 1958 (Cth)

SZIOH v Minister for Immigration & Anor [2007] FMCA 1558

























SZIOH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2005 OF 2007

BUCHANAN J
5 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2005 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BUCHANAN J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.











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 2005 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BUCHANAN J
DATE:	5 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 The appellant is a citizen of the People’s Republic of China (‘the PRC’). She is 45 years old. She is married. Her husband lives in China. She has a 20 year old daughter who lives in Australia and a 22 year old son who lives in China. The appellant arrived in Australia on 24 September 2005 on a visitor visa using a passport issued by the PRC on 14 April 2005. She had a valid exit visa to leave the PRC. One month after her arrival, on 24 October 2005 she signed an application for a protection (Class XA) visa. She said she was a member of an independent Christian church in Fujian, where she lived in China, and at the end of 2004 had been arrested, tortured and detained for two days. She said she feared persecution if she returned to China.

2 On 17 November 2005 a delegate of the Minister for Immigration and Citizenship (‘the Minister’) refused her application. The delegate found that it was most improbable that the appellant was of any interest to Chinese authorities or would be persecuted if she returned to China. He noted that:

- she had lived at the same address at all relevant times until her departure for Australia;

- she had obtained a passport without apparent difficulty;

- although the appellant claimed she had obtained her passport by irregular means the delegate found, on the basis of ‘credible country information’ that it was unlikely she would have been able to obtain a passport if she was of interest to the Chinese authorities;

- the passport was not obtained until some months after her alleged detention;

- she did not apply for an exit visa until September 2005, some further months later;

- after obtaining an exit visa it was a further three weeks before the appellant left China;

- after arriving in Australia it was one month before she applied for a protection visa.

3 The delegate’s conclusions were as follows:

‘I do not accept that the applicant would be arrested upon return to China as she claims. The Chinese authorities had ample time in which to detain her if she was truly wanted by them. They could have, and would have, prevented her departure from China if they considered her to be of adverse interest. It is implausible that she would be granted a visa and allowed to depart the country if she was suspected by the authorities of being involved in clandestine activities with an underground church.

I find that the applicant’s fear of Convention based persecution is not well-founded. Her tardiness in applying for protection in Australia is not reflective of someone fleeing to another country in order to seek refuge. I am satisfied that the applicant has not faced torture as she claims. I am satisfied that she is not a person at risk of attracting the adverse attention of the PRC authorities. I do not accept that the applicant left the PRC through any illegal means nor do I accept that the applicant has taken any action that would have attracted the adverse attention of the authorities.

I find that the applicant does not have a well-founded fear of Convention based persecution.’

4 On 19 December 2005 the appellant applied to the Refugee Review Tribunal (‘the RRT’) for a review of the delegate’s decision. Under the Migration Act 1958 (Cth) (‘the Act’) the RRT was obliged to make its own decision.

5 On 23 February 2006 the RRT handed down a decision affirming the decision of the delegate but on 11 May 2006 the Federal Magistrates Court of Australia (‘the FMCA’), by consent, set aside the decision of the RRT and remitted the application for review to it for further consideration. On 17 August 2006 the RRT, differently constituted, handed down a further decision, again affirming the decision of the delegate not to grant a protection visa. Although the delegate appeared to accept the appellant’s claims to be a member of an underground church, it appears from the latest decision of the RRT that a lot of time was spent examining the appellant’s claims to be a member of an underground Christian church. The appellant identified the teachings she followed as ‘Hu Han Pai’ (or Huhan Pai), otherwise known as the ‘Shouters’. The RRT made many comparisons between the answers given by the appellant in the oral hearing and independent country information about the ‘Shouters’ beliefs and practices. The RRT concluded that the appellant was not a real adherent to this line of Christian beliefs. By contrast with the examination of the appellant’s claims to be Christian, comparatively little attention was given to the examination of the matters which the delegate identified as relevant to his decision.

6 The RRT also relates that in the hearing before it the appellant, in answer to questions by the RRT, indicated that she applied for, and was issued with, a passport in the normal way. She also indicated that she has never been detained in China but fears persecution if she returns because her name is ‘on a list’.

7 The RRT did not believe the appellant’s claims. It did not believe her claims about her religious beliefs and it did not accept that she was of any interest to the Chinese authorities. It referred to opportunities given to the appellant to explain the contradictions between her claims for a protection visa and the evidence given to the RRT and to inconsistencies between her evidence and independent country evidence about the same matters. The RRT recorded that the appellant declined to comment on a number of such occasions.

8 The appellant sought judicial review before the FMCA of the decision of the RRT handed down on 17 August 2006. In an Amended Application the grounds upon which the appellant relied were stated as follows:

‘1. The Tribunal failed to carry out it’s statutory duty. Procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed.

2. The Tribunal’s decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical. There was no evidence or the other material to justify the making of the decision.

3. The Tribunal failed to carry out it’s decision in a bona fide manner. Everyone knows China is an one-party country and the religious activities is not free there. If I return to China, I am sure I will be seriously persecurted [sic] to die.’

9 On 17 September 2007 the application for judicial review was dismissed by the FMCA (SZIOH v Minister for Immigration & Anor [2007] FMCA 1558). The appellant represented herself before the FMCA. She had made no written submissions and declined an invitation to make oral submissions, relying solely on the grounds stated in her Amended Application. Those grounds did not raise a respectable case of jurisdictional error, or error of any other kind. They were each examined, nevertheless, by the Federal Magistrate who concluded that none of them were made out. On 8 October 2007 the appellant appealed to this Court. The grounds of appeal are:

‘1. The Tribunal failed to carry out its statutory duty. Procedures that were required to be observed in connection with the making of the decision were not observed.

2. The Tribunal’s decision was based on unwarranted assumptions and/or was based on reasoning which was irrational and/or illogical. There was no evidence or the other material to justify the making of the decision.

3. The Tribunal failed to carry out its decision in a bona fide manner. China is a one-party country and the religious activities are not free. If I return to China, I am sure I will be seriously persecuted to die.’

These assertions are identical in substance to those rejected by the FMCA.

10 The appellant made no written submissions before the hearing of the appeal. At the hearing of the appeal she made a short oral submission, through an interpreter to the effect that she was a Christian, in China she had no job but stayed at home looking after her children, she went to church services, she was persecuted, she ran away and she is afraid of going back. These statements do not raise any jurisdictional error or suggest any error in the decision of the FMCA. There is no other basis to conclude that error of any relevant kind was committed by either the RRT or the FMCA. It is inevitable that the appeal be dismissed. It is appropriate to dismiss it with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated: 5 March 2008

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	21 February 2008
Date of Judgment:	5 March 2008