SZAKZ v Minister for Immigation and Multicultural and Indigenous Affairs

[2004] FCA 1028

FEDERAL COURT OF AUSTRALIA

SZAKZ v Minister for Immigation & Multicultural & Indigenous Affairs
[2004] FCA 1028

SZAKZ & ORS v MINISTER FOR IMMIGATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N610 OF 2004

JACOBSON J
2 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 610 OF 2004

BETWEEN:	SZAKZ FIRST APPELLANT
SZALA SECOND APPELLANT
AND:	MINISTER FOR IMMIGATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	2 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The first and second appellants pay the respondent’s costs of the proceedings.

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	N 610 OF 2004

BETWEEN:	SZAKZ FIRST APPELLANT
SZALA SECOND APPELLANT
AND:	MINISTER FOR IMMIGATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	2 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Raphael, given on 31 March 2004, dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) handed down on 3 April 2003.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellants a protection visa. 

2. The appellants are husband and wife.  They are citizens of the Peoples Republic of China who arrived in Australia on 25 October 2001.  They lodged an application for protection visas on 20 November 2001.  No separate claim was made on behalf of the wife and her application turned entirely upon the application made by her husband.

3. I will refer to the appellant husband as the appellant because as I have said the whole of the matter turns upon what was put by him before the RRT and on the application to the Federal Magistrate.  The appellant made a claim to be owed protection obligations by Australia upon the ground that he had been maltreated during the Cultural Revolution by reason of his father's involvement in a Christian faith and later on account of the appellant's own involvement in what is described in the RRTs decision as “a secret Christian church”.

4. The appellant claimed that he and his family had suffered badly as a result of their involvement in an "underground church" and that the appellant had been sent for

   
   

   "re-education" at a farm for a period of 10 years.  He claimed to have been interrogated in September 1994 and to have been detained for a period in 1996 and again in 1997.

5. The appellant also claimed that he had been arrested in June 1998 and that he was sentenced to two years of "reform through labour" at a farm where he said he was physically mistreated and forced to give up his religion.

6. The RRT did not accept that the appellant was a witness of truth and said that it was satisfied that the appellant had fabricated his claims to refugee status.  The RRT said that it did not accept that the appellant had been arrested, interrogated, detained or committed to forced labour because of his religion.

7. The RRT did not accept that the appellant was, when he left China to travel to Australia, or would be, if he were to return to China, of adverse interest to the Chinese authorities.

8. The RRT said that on the basis of these findings and for reasons to which I will refer shortly, it was satisfied that the appellant did not have a genuine or well-founded fear of persecution by reason of his religion.

9. The essential ground upon which the RRT made its findings was that the evidence of the appellant was inconsistent with independent country information which the RRT said suggested that a person of the appellant's low profile would be unlikely to warrant adverse attention of the kind which the appellant described.

10. The RRT referred in addition to the fact that the appellant had left China for Thailand but he had subsequently returned to China.  The RRT said that this was inconsistent with a genuine fear of persecution in China.  The RRT observed that even though Thailand was not a signatory to the convention, nevertheless the appellant did not make any attempt to explore other avenues of protection when he was absent from China but instead chose to return to China from Thailand.

11. The RRT also said that it was not satisfied that a person who claimed to have a genuine fear of persecution would delay his departure from China in the way in which the appellant had done.  The RRT observed that the appellant did not depart from China until 25 October 2001 (it may be that the actual departure date was several days before 25 October 2001).  The RRT pointed out that the appellant had received his Australian visa on 18 September 2001, that is to say there was a delay of approximately six weeks after the Australian visa was received, and the RRT observed that the appellant had in fact obtained his passport on 9 January 2001.  The RRT also pointed out that the delays had to be considered in the context of the appellant's claim, which was that he had been released from forced labour in July 2000. 

12. The RRT said at paragraph 62 of its reasons that it was satisfied that the appellant was of no interest to the Chinese authorities at the time he obtained his passport or at the time he departed China.  The RRT also said in that paragraph that it was satisfied that the appellant would not be of adverse interest to the Chinese authorities if he were to return to China. 

13. The learned Federal Magistrate referred in some detail to the background facts and claims relied upon by the appellant before the RRT.  The Federal Magistrate then set out the findings and reasons of the RRT.

14. The Federal Magistrate referred to the reasons given by the RRT for its findings and said at paragraph 7 that the effect of the RRT's reasons was that the RRT did not believe that a person whose relationship to a secret church was as the applicant had told it would have been subject to that type of persecution upon the basis of the country information.  The Magistrate said at paragraph 8 that the RRT concluded that the secret church was not likely, again on the basis of independent country information, to have attracted the attention of the authorities.  The Magistrate said at paragraph 10 that the country information cited by the RRT allowed it to come to the conclusions that it reached.  The Magistrate said at paragraph 10 that he was not satisfied that there had been any jurisdictional error or indeed any error made by the Tribunal.

15. The learned Magistrate said in paragraph 11 that the substance of the RRTs reasons was that the appellant was provided with an opportunity of persuading the RRT of the truth of his claims but that he was unable to do so.  The Magistrate said that this was the RRTs duty "par excellence". 

16. The appellant appeared before me this morning in person.  He put two grounds of appeal.  The first was that he and his wife were very nervous during the hearing before the RRT and that this caused him to be scared and consequently to have made mistakes which were relied upon by the RRT.

17. The second ground of appeal was that the RRT questioned him only about what happened to him in China before his departure from Australia and not about what would happen to him if he were returned to China by force.  As to the first ground, Mr Smith of counsel who appeared for the Minister, pointed out that this ground does not appear to have been raised before the Federal Magistrate.  Mr Smith submitted that the point cannot be made without evidence and no such evidence was put before the Federal Magistrate.  Mr Smith said that the point may have been met by the Minister in the proceeding before Federal Magistrate if any such evidence was led.

18. I accept this submission, which is supported by well known authority of the High Court in Coulton v Holcombe (1986) 162 CLR 1 at 7, per Gibbs CJ, Wilson, Brennan and Dawson JJ.. In any event, there are a number of other reasons why this ground of appeal must fail. First, it is clear that the RRT’s reasons in respect of the claims which were made before it turned upon inconsistencies between the appellant's claims and the independent country information before the RRT. It therefore follows that even if there were difficulties experienced by the appellant at the hearing before the RRT, they were not material to the RRT’s consideration of the application.

19. The gravamen or substance of the appellant's claim was that he had a well-founded fear of persecution by reason of his involvement in the underground church and he pointed to what he said to be mistreatment including detention and interrogation over a lengthy period.  The finding which the RRT made was that this was inconsistent with the independent country information. 

20. The second reason why the ground must fail is that the appellant told me this morning that he agreed with what Mr Smith said about material that the appellant did seek to raise before the Federal Magistrate.

21. The appellant, apparently in an attempt to meet Mr Smith's submission that this point was not raised, said that he had put before the Federal Magistrate evidence which was rejected.  But the evidence did not go to any question of the anxiety which the appellant said that he was suffering from before the RRT. 

22. Mr Smith told me that the evidence which the appellant had sought to tender consisted of newspaper articles, and the appellant agreed that this was so.  There could be no error in the rejection of that material.  The newspaper articles were not tendered before me today but even if they related to the relevant period of time, their only relevance could have been to seek to challenge the findings of fact made by the RRT.  The Federal Magistrate was clearly correct in rejecting the tender of these articles.

23. The second ground of appeal argued by the appellant this morning appears on its face to raise an error of law.  The effect of the submission is that the RRT failed to look to the future to consider what may happen to the appellant if he is returned to China.

24. However, it seems to me that this submission is not correct.  The RRT did deal with this in a number of places in its decision.  Most notably the RRT did so at paragraph 62 in a passage to which I referred above.

25. It is true, as Mr Smith has submitted that whilst past events are not determinative, they are probative of the claim.  This has been dealt with in the authorities on a number of occasions including a decision of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 387 per Mason CJ.

26. It seems to me that paragraph 62 of the decision indicates that the RRT considered not only past events but also looked to the future to consider whether the appellant would be of adverse interest to the authorities on his return to China.

27. In any event, even if the RRT made an error in this respect, it is plain that it did not affect the decision.  This is because the RRT made a finding that the appellant did not have a subjective fear of persecution.  The RRT's consideration of this is to be found in the paragraphs to which I referred about the appellant's visit to Thailand and his delay in departure from China.  As I said above, the RRT noted that the delay had to be considered in its proper context which included the fact that the appellant said he had been in forced labour for two years and that he had only been released in the year 2000.  The RRT's findings on both of these points were open to it. 

28. Finally, it is to be borne in mind that the learned Federal Magistrate examined the RRT's reasons for himself and concluded that the reasons were not affected by jurisdictional error.

29. In particular, this was because the Magistrate was of the view that the substance of the RRT's reasons was that the appellant had been unable to satisfy the RRT of the veracity of his claims.  The Magistrate's reference to the duty "par excellence" of the Tribunal to make this finding was clearly enough a reference to the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 167 .

30. It follows in my view that there is no error in the judgment of the Federal Magistrate and the appeal must be dismissed with costs. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             10 August 2004

Counsel for the Applicant:	The appellant appeared for himself
Counsel for the Respondent:	Mr Justin Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 August 2004
Date of Judgment:	2 August 2004