SZLEU v Minister for Immigration and Citizenship [2008] FCA 699 (19 May 2008)

Last Updated: 20 May 2008

FEDERAL COURT OF AUSTRALIA

SZLEU v Minister for Immigration and Citizenship [2008] FCA 699

SZLEU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 211 OF 2008

COWDROY J
19 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 211 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE OF ORDER:	19 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Appellant pay the costs of the First Respondent in the amount of $1,700 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

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 211 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	COWDROY J
DATE:	19 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from the decision of Federal Magistrate Raphael delivered on 31 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 24 July 2007. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant the appellant a Protection (Class XA) visa (‘the protection visa’).

BACKGROUND

2 The appellant is a citizen of the People’s Republic of China (‘the PRC’) who arrived in Australia on 12 April 2007 using a Class UC Temporary Business Entry subclass 456 visa (‘the business visa’). On 7 May 2007 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for the protection visa on 22 May 2007. On 8 June 2007 the appellant applied to the Tribunal for a review of the delegate’s decision.

3 The appellant claims to have well-founded fear of persecution resulting from his religious beliefs. The appellant claims that he first attended the Sujiatun District Christian Church on 14 April 2002. The appellant claims that he became involved in spreading the Gospel but the police warned him against such activity. The appellant felt the public church was ‘not the real home for Christians’ and accordingly left the Sujiatun District Christian Church. The appellant claims he then began attending an underground house church (‘the underground church’).

4 The appellant claims that in February 2003 the police raided a meeting of the underground church and those in attendance, including the appellant, were detained and beaten by the police. The appellant claims that he and another member of the underground church were sentenced to gaol for one year for ‘attending illegal church gathering’. The appellant claims that he was released in March 2004 but was ‘constantly harassed’ by the police. The appellant claims that the police threatened him with further periods of incarceration should he attend any further illegal church gatherings. He claims that he escaped the PRC because ‘there is no real religious freedom’.

THE TRIBUNAL DECISION

5 On 20 June 2007 pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) the Tribunal sent the appellant an invitation to comment on information (‘the s 424A letter’). In the appellant’s response to such invitation the appellant provided to the Tribunal a letter dated 1 July 2007 from a pastor of Hillsong Church which indicated that the appellant had been attending church services in Australia for ‘the last two to three months’.

6 The Tribunal found the appellant’s evidence to be vague, lacking in detail, and in some instances confused. The Tribunal did not accept that the deficiencies in the appellant’s evidence were attributable to the appellant’s claimed nervousness, forgetfulness or lack of education. The Tribunal found that the appellant was not a credible witness.

7 The Tribunal found the employment history provided in the appellant’s application for the business visa (which he used to enter Australia) was significantly different to the information provided in the protection visa application. The Tribunal stated that it relied on ‘the extensive verification of the information’ undertaken by Immigration officers in reaching its finding that the information in the business visa application was correct. Accordingly, the Tribunal found that the information regarding his employment in the protection visa application was false.

8 The Tribunal found the appellant’s evidence relating to his religious activities in the PRC was ‘vague and evasive’. The Tribunal found the appellant did not display a reasonable knowledge of Christianity. The Tribunal did not accept that the appellant had been involved with Christianity since 2002 or that he had attended an official church or an unregistered church. The Tribunal found that the appellant was not a devout Christian in the PRC. Accordingly, the Tribunal did not accept that the appellant had been detained for one year.

9 The Tribunal accepted that the appellant had attended church services in Australia. However, the Tribunal did not accept that the appellant had engaged in such religious activities otherwise than to strengthen his refugee claims and accordingly disregarded the conduct pursuant to s 91R(3) of the Act.

10 The Tribunal found that if the appellant returned to the PRC now or in the reasonably foreseeable future there is no real chance that the appellant would face persecution resulting from his involvement with Christianity.

11 The Tribunal was not satisfied that the appellant had well-founded fear of persecution for any Convention Relating to the Status of Refugees 1951 reason. The Tribunal affirmed the delegate’s decision to refuse to grant the protection visa to the appellant.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE

12 By application filed in the Federal Magistrates Court of Australia on 15 August 2007 the appellant sought judicial review of the Tribunal’s decision. The appellant raised two ground of review:

1. Jurisdictional error has bee [sic] made. RRT ignored my evidences. 2. Procedural fairness has been denied. I am Christian. I fear to go back.

13 The Federal Magistrate found the grounds raised no jurisdictional error. In particular, his Honour found the Tribunal had provided procedural fairness to the appellant including sending a letter to him in compliance with s 424A of the Act.

APPEAL TO THIS COURT

14 On 20 February 2008 the appellant filed a notice of appeal in this Court which raised three grounds of appeal as follows:

1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 2. I lodged application to the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair. 3. I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court.

15 In an affidavit filed on 20 February 2008 the appellant asserts that he did not have a chance to provide more evidence and to explain his persecution to the Federal Magistrate. Further, the appellant claims that the Tribunal did not notify him of the reasons upon which it would be basing its refusal of his application for review of the delegate’s decision, and as a consequence the appellant could not provide a ‘reasonable response to those doubts’.

FINDINGS

16 The appellant attended the hearing of his appeal. The appellant made no submissions in support of the grounds of appeal, however he repeated his claim that he was a practicing Christian.

17 The first ground of appeal alleges that the Tribunal was biased against the appellant and that it did not make a fair decision in respect of the application before it. A claim of bias has been held to be a serious allegation which must be clearly alleged and proved: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358. In the absence of any particulars in support of this allegation, the Court rejects this ground of appeal.

18 The second ground of appeal alleges that the Federal Magistrate’s refusal of the appellant’s application was ‘not fair’. No error on the part of his Honour is specified and it is impossible to glean from either the notice of appeal or from his Honour’s decision any error of law. In so far as the appellant seeks a review of the merits of his claim, this Court on appeal from a decision of the Federal Magistrate has no judicial authority to re-determine the facts: see SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192 at [8] - [12]. The Court accordingly rejects the ground.

19 No detail was provided in support of the third ground of appeal. The Court rejects this ground of appeal.

20 The appellant’s affidavit alleges that the Tribunal did not comply with the requirements of s 424A of the Act. The Court notes that the Tribunal forwarded to the appellant the s 424A letter and that the appellant responded to such letter on 2 July 2007. The appellant’s reply commented on the information forwarded to him and provided supporting documents. The Court accordingly finds no basis for the allegation of the appellant that the Tribunal failed to comply with the requirements of s 424A of the Act.

21 It follows that this appeal must be dismissed with costs.

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

Associate:

Dated: 19 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms McWilliam
Solicitor for the First Respondent:	Ms Dinihan

Date of Hearing:	14 May 2008
Date of Judgment:	19 May 2008