SZMYL v Minister for Immigration and Citizenship [2010] FCA 119 (24 February 2010)

Last Updated: 26 February 2010

FEDERAL COURT OF AUSTRALIA

SZMYL v Minister for Immigration and Citizenship [2010] FCA 119

Citation:		SZMYL v Minister for Immigration and Citizenship [2010] FCA 119
Appeal from:		SZMYL v Minister for Immigration & Anor [2009] FMCA 1234
Parties:		SZMYL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 5 of 2010
Judge:		BESANKO J
Date of judgment:		24 February 2010
Date of hearing:	22 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category	No catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms E Warner-Knight
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 5 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

THE COURT ORDERS THAT:

1. The appeal be dismissed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 5 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

REASONS FOR JUDGMENT

1. This is an appeal from an order made by the Federal Magistrates Court on 21 November 2008. On that day, the Federal Magistrate made an order dismissing the appellant’s application for judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal’s decision was to affirm a decision of a delegate of the Minister for Immigration and Citizenship not to grant a Protection (Class XA) visa (“protection visa”) to the appellant.
2. The appellant is a national of the People’s Republic of China. He arrived in Australia on 25 March 2008 and he applied for a protection visa on 24 April 2008. His application was refused by a delegate on 11 July 2008 and, on 12 August 2008, he applied for review of that decision by the Tribunal. The Tribunal conducted a hearing and, by decision dated 28 October 2008, affirmed the decision of the delegate.
3. The Tribunal said that the appellant claimed to belong to an underground Christian church in China and to be subject to persecution. He claimed that he was raised in a Christian family and that his parents and grandparents were Christian. He claimed that his father and uncle were the main organisers of an underground Christian church and that his family was constantly harassed by the authorities. He claimed that, in 2000, he joined a group with a person I will refer to as L. He claimed that he was constantly questioned by the Public Security Bureau and religious authorities and that, for over a month in 2007, he was detained and tortured by the authorities in China. The appellant claimed that he was involved in the Christian church all his life and that, from 2000, he was involved with a cell group and assisted by L, who was the organiser of the church. The appellant claimed that he worshipped every Sunday and he was involved in promoting and organising an underground church.
4. The Tribunal found that the appellant was not a witness of credit. The Tribunal member said that at the hearing the appellant’s evidence was inconsistent and confused. He did not answer questions put to him by the Tribunal member, but rather, recited his statement in a rote fashion. The Tribunal member said that the appellant was unable to answer a number of questions about his beliefs and commitment. The Tribunal member said that the appellant provided confused and contradictory evidence.
5. The Tribunal member said that she did not accept that the appellant was a Christian in China. She found that the appellant did not practise Christianity and was not a Christian in China. She found that there was no real chance of the appellant being persecuted if he returned to China. She found that the appellant was never a member of any underground church, nor did he participate in any activities with the underground church. The Tribunal member found that the appellant was not harassed or detained by the authorities in China and that he was not at risk of being detained in the future.
6. The Tribunal member noted that the appellant had left China through an international airport and that the appellant claimed that he was only a danger at a local level. The Tribunal member said with respect to his ability to leave China:

As the Tribunal has found that the [appellant] is not a Christian the Tribunal does not accept the [appellant’s] claims that he was able to leave China because he was only in danger at a local level and would only be in danger if he were to return. The Tribunal finds that the [appellant] was not a Christian or perceived to be a Christian and therefore was not detained or harassed by authorities and warned not to practise his Christianity at unauthorised gatherings.

7. The Tribunal member found that the appellant left China legally and on valid travel documents. She did not accept the appellant as a truthful witness and she did not accept that he paid extra money for his passport or was at risk from police or authorities if he were to return to China. The Tribunal member found that, if the appellant was on any list or was of any interest to the authorities, he would not have been able to leave the country legally in 2008. She said that independent country information stated that any person of interest to the authorities in the People’s Republic of China would find it difficult to leave the country on a valid exit document.
8. The Tribunal member referred to the appellant’s claim that he had continued to practise Christianity in Australia, and noted that the appellant could only provide a church pamphlet to the Tribunal. She said that she gave the appellant several occasions to express his commitment to Christianity and elaborate on his beliefs. The appellant was not able to do this. The Tribunal member referred to the appellant’s claim to have attended church in Australia and, in that context, she said:

The Tribunal has formed the views that if the [appellant] attended the Anglican Church at Parramatta it was simply in order to strengthen his claim for refugee status. The Tribunal is not satisfied that he has a real commitment to Christianity. As the Tribunal is not satisfied that the [appellant’s] conduct was otherwise than for the purpose of strengthening his claim to be a refugee under the Refugees Convention it must disregard his conduct in Australia as required by s 91R(3) of the Act.

9. The Tribunal member said she was not satisfied, after considering all the evidence before her, that the appellant had a well-founded fear of persecution.
10. There were five grounds in the appellant’s application for judicial review. They were as follows:
    1. The Tribunal failed to act judicially and afford procedural fairness.
    2. The Tribunal failed to investigate the applicant’s genuine claims.
    3. The Tribunal misunderstood and failed to apply the correct test in order to be satisfied as to whether the applicant had a well-founded fear of persecution for a Convention reason on the ground of religion.
    4. The Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claims.
    5. The Tribunal failed to comply with s 424A of the Act.
    6. The Tribunal failed to comply with s 91R(4) of the Act.
11. There were four paragraphs containing particulars, but it is not necessary to set them out for present purposes.
12. The federal magistrate rejected each ground, and he concluded that jurisdictional error had not been shown.
13. The grounds of appeal to this Court are as follows:
    1. The FM erred in law by failing to find RRT’s failure to comply with section 424A of the Act.
       
    2. The FM erred in law by failing to find that RRT use outdated instead of updated country information to assess my case that thereby erring in law by applying critically wrong test in my case.
       
    3. The FM erred in law by failing to find RRT failure in complying with section 91R(3) of the Act.
       
14. The appellant appeared in person before this Court. He had the assistance of an interpreter. He read from a prepared statement. He put arguments in support of grounds one and three and he raised a new ground. I will address each ground having regard to all the material, but, in particular, the federal magistrate’s reasons and the appellant’s oral submissions.
15. The first ground of appeal relates to the matter raised in ground 5 of the application for judicial review. The federal magistrate noted that there were no particulars of this ground. The federal magistrate referred to the exceptions to the obligation in s 424A(1) in subsection (3)(a) and (b):

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review;

16. The federal magistrate said that the country information before the Tribunal fell within s 424A(3)(a) and that the balance of the material was provided by the applicant and fell within s 424A(3)(b). The federal magistrate said that, in the absence of further elaboration of the alleged failure to comply with s 424A of the Act, the claim could not be sustained and should be dismissed. The appellant did not say anything in the course of his oral submissions which causes me to doubt the correctness of this conclusion. He contended that he was asked questions about the church and that he should have been told why those questions were relevant to his application for review. Plainly, if that was information it fell within the terms of s 424A(3)(b).
17. The second ground of appeal relates to the country information relied on by the Tribunal. This information fell into two categories. First, there was country information supplied by the appellant with his review application. The Tribunal member described this country information as being of a general nature, providing details of persecution against underground churches, including Protestant and Catholic underground churches in China. I do not understand the appellant to complain about this aspect of the country information. The Tribunal member referred at length to country information dealing with exit procedures from China, that is to say, the circumstances in which a Chinese national may leave that country. There is nothing before the Court explaining the reasons the appellant submits that that country information is outdated, but, in any event, the ground must fail for another reason. The Tribunal rejected the appellant’s contention that he was on a list or was of interest to the authorities in China or both.
18. The third ground of appeal relates to the appellant’s attendance at church in Australia. The Tribunal said that “if the [appellant] attended the Anglican Church at Parramatta it was simply in order to strengthen his claim for refugee status”. The Tribunal member seemed to have strong doubts about the appellant’s claim to have attended the Anglican Church at Parramatta. Nevertheless, she said that if he did attend, he did so only to strengthen his claim for refugee status. That conclusion was open to the Tribunal member on the evidence. In his oral submissions the appellant seemed to submit that the Tribunal relied on his conduct in Australia in a way which was adverse to him and that that was contrary to s 91R(3) of the Act. An argument to this effect failed in Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642. In any event, I do not think the Tribunal relied on the conduct in a way adverse to the appellant, as distinct from simply disregarding it.
19. In his oral submissions, the appellant raised an argument which was not put to the federal magistrate. The exact nature of the argument is unclear. The effect of it seems to be that the appellant did not receive a fair hearing before the Tribunal. The appellant complained that he did not have enough time before the Tribunal to give evidence of the “major events”. It was never made clear whether that was the result of conduct by the Tribunal member, although the appellant did say that the Tribunal member “interrupted” him by asking questions. The appellant should not be permitted to raise this matter. It was not raised below and there is no evidence to support it. As far as I can see from the Tribunal’s reasons, the appellant was given every opportunity to present his case.
20. In my opinion, all grounds of appeal fail, and the appeal must be dismissed.
    

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 24 February 2010