SZEDJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1692

FEDERAL COURT OF AUSTRALIA

SZEDJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1692

SZEDJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 1458 of 2005

WILCOX J
21 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1458 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZEDJ
APPELLANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

21 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be 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 1458 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZEDJ
APPELLANT

AND:

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE:

21 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Nicholls delivered on 5 August 2005 rejecting an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the present respondent, refusing to grant to the appellant a protection visa. 

2. The Chief Justice directed, pursuant to section 25(1A) of the Federal Court of Australia Act 1976 (Cth), that this appeal be heard and determined by a single judge.

3. The appellant is a citizen of the Peoples Republic of China.  At the Tribunal hearing, he claimed to have a well-founded fear of persecution, if he returned to China, because of political opinion and religion.  The appellant claimed to have been a practising Christian in China and to have been a founding member of the Qingdao Independent Christian Church, an unofficial church of Protestant persuasion.  I gather this church expressed ideas broadly in line with those of the Baptist Church. 

4. The appellant claimed to have been active in recruiting new members of the church between January 2000 and April 2002.  He said that, as a result, he was questioned on three occasions by the Public Security Bureau.  He was sometimes detained overnight.  To his knowledge, no charges were laid against him. 

5. However, the appellant decided to leave China.  He did so in September 2002, travelling on a passport in his correct name.  The appellant entered Australia under a temporary business visa issued in Beijing on 15 August 2002 and valid for one month after arrival.  Within that period of one month, he lodged an application for a protection visa (Class XA) with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’).

6. The Tribunal conducted a hearing on 22 October 2003.  The appellant attended the hearing, accompanied by a migration adviser.  During the hearing, it was suggested by the appellant, or his adviser, that a warrant had been issued for his arrest.  No warrant had been produced and the Tribunal member asked to be furnished with a copy of the warrant.

7. Subsequently, the appellant's migration adviser provided to the Tribunal five documents.  They did not include a copy of the warrant.  Two of the documents were statutory declarations made in English by the appellant.  The other three documents were documents in Mandarin, which have been translated into English. 

8. Two of these three documents, being dated respectively 29 June 2002 and 17 August 2002, purport to be summonses issued by the local police station at JiaXing Road, Si Fang Branch of the Public Security Bureau of Qingdao City.  The documents are in similar terms, except for the date at which the appellant is to present himself ‘for interrogation regarding to establishment of illegal Qingdao Independent Christian Church’.  The documents bear stamps and purport to be signed by the chief of the Si Fang Branch.  It will be noted that the two dates are prior to the appellant's departure from China.

9. The third document is dated 22 October 2002.  The heading refers to the Si Fang Branch of the Public Security Bureau of Qingdao City.  The document contains a photograph, apparently of the appellant, and certifies that the appellant ‘has been notified publicly on 20 October 2002, due to his propaganda of religious beliefs in illegal religious activities against the government’.  The document calls upon the appellant to surrender himself to the police within 10 days from the announcement.  That is apparently 10 days from 22 October 2002.

10. Upon receipt of these documents, the Tribunal member referred them to the Document Examination Section of the Department.  That section provided a Minute dated 23 January 2004.  The Minute contained a description of each of the documents but the examiner expressed no conclusion regarding the authenticity of any document.  However, the writer of the Minute set out the following conclusion:

    ‘As a result of the examination:

    A.The document examination section currently holds no information or specimens relating to items 1 to 3.

    B.Information from the overseas post advises that Items 1 to 3 are fraudulent.’

    The report did not identify the information referred to in para B.

11. On 18 February 2004, the District Registrar of the Tribunal wrote to the appellant referring to the provision of the documents and saying as follows:

    ‘The Tribunal referred those documents, namely two summons issued by the local police and a document in foreign text, to the Document Examination Section of the Department of Immigration and Multicultural and Indigenous Affairs. 

    The section conducted its own examinations and consulted with the Australia Embassy in China. 

    The report of the Section was received on 24 January 2004. 

    It concluded that all three documents were fraudulent. 

    This information is relevant because applicant credibility [sic]. 

    You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by 12 March 2004.’

12. The appellant did comment on the letter.  In a letter dated 10 March 2004, he said:

    ‘Frankly speaking, without any further detailed information about the examinations conducted by the Section I have found it very difficult to make any comments on the result of the examination. 

    As a matter of fact, if the Section did contact with relevant officials in Si Fang Branch of the Public Security Bureau, Qingdao City and officials in the Local Police Station at JiaXing Road, I believe that it must be found that the documents provided by me is genuine documents. 

    I have to emphasize that as I have mentioned before, I have been informed by my wife that most of my personal and legal documents have already been confiscated by the Public Security Bureau.  Therefore, I am sure that further documentary evidences must be found if the Section of the Australian Embassy could contact the PSB directly for seeking my personal documents.’

13. The Tribunal did not contact the Public Security Bureau as suggested.  Rather, the Tribunal member handed down reasons for decision on 21 June 2004, in which he affirmed the delegate's decision.  In those reasons, the Tribunal referred to the documents in the following way:

    ‘The documentary evidence produced by the applicant was the claimed police papers he provided on 12 November 2003.  They are in the Tribunal’s file.

    Commenting, firstly none of them is the arrest warrant that the Tribunal requested or a copy thereof.  The closest to a warrant is the paper dated 22 October which purports to be a ‘wanted’ poster, telling him to surrender himself.  Second, he is identified in the 22 October document as the head of the Qingdao Church.  Third, he is shown as being summoned and wanted for questioning in June and August 2002 about the establishment of the church.

    Commenting, as the applicant from his evidence was not convicted of any offence or charged after his claimed 1970 to 1976 detention, the Tribunal does not accept that a warrant would be issued for his arrest and that his name appear on a wanted list.  Next, he is listed as the head of the church, a position he has never claimed, for Mr Heng and Mr He were his religious superiors.  He is shown too as being questioned in 2002 about the establishment which according to his evidence was three years earlier, in 1999.  The applicant left China legally on 10 October, having obtained the appropriate exit clearances from the authorities, presumably as business traveller.  The authorities on 22 October would have known of his departure and an order to surrender himself is not logical.

    The Tribunal notes that the three documents were found to be fraudulent by the appropriate expert authority.  When that expert conclusion was drawn to the applicant’s attention, he suggested that the matter of authenticity be further explored with Chinese authorities.  The Tribunal did not do this.  First, because it is the applicant’s responsibility to make his case, not the Tribunal’s, second because such a request to the Public Security Bureau is unlikely to be fruitful.  Third, because of the Tribunal [sic] later finding on credibility.

    In the event, the Tribunal’s findings on credibility which follow led it to place no weight on those documents.’

14. After the Tribunal's decision, the appellant had the benefit of advice about his case from a barrister experienced in this area of law.  The advice was furnished to him under the Court’s scheme for free legal advice. 

15. The barrister suggested two points of appeal, to be argued before the magistrate.  He prepared an amended application raising those points.  Those points both turned on an observation by the Tribunal member that there was evidence that the appellant had attended a local Baptist church since arriving in Australia.  The suggestion was that the Tribunal failed to give attention to a material matter in that it failed to consider whether the applicant would be free to practise in the same way as in a Baptist church if he returned to China.  I agree with the magistrate’s reasons for rejecting this as a ground of alleged jurisdictional error: see para 9 of the magistrate's reasons. 

16. The notice of appeal filed in this Court on 22 August 2005 did not disclose any grounds of appeal. However, on 21 October 2005, the appellant filed an amended notice of appeal in which he set out what, in substance, were two grounds. 

17. One ground of appeal was that the magistrate had declined to take into evidence the tape of the Tribunal hearing.  Apparently, this is factually correct.  When I asked the appellant why he wanted the magistrate to have the tape, the appellant said he was doing this in order to show that what he had said to the magistrate as to the facts was consistent with what he had said to the Tribunal.  However, inconsistency had never been suggested.  Moreover, it was not for the magistrate to determine the facts nor was he purporting to do so.  There is nothing in this ground of appeal. 

18. The other ground of appeal caused me greater concern.  The letter sent by the Tribunal to the appellant did not enclose a copy of the Minute from the Document Examination Section of the Department.  Had it done so, it would have been obvious to the appellant that the claim of fraud came, not from an expert document examiner, but from the Australian Embassy in Beijing.

19. It is unfortunate that this distinction was not made apparent to the appellant. However, on consideration, it seems to me this does not give rise to any jurisdictional error. Section 424A(1)(a) of the Migration Act 1958 (Cth) requires the Tribunal in particular circumstances to give:

    ‘...particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.’

    The letter from the Tribunal of 18 February 2004 provided particulars of the reason, namely that the documents were fraudulent.  The Tribunal was not obliged to provide a copy of the material upon which the particulars were based.

20. I do not think the letter was misleading.  The relevant statement was:  ‘It concluded that all three documents were fraudulent.’  The word ‘It’ was a reference to the ‘report of the section’ – that is, the Minute - not to the document examiner’s expert opinion. 

21. Whether or not the Tribunal came to correct conclusions about these documents, having regard to the matters set out in the passage from its reasons quoted above, is not a matter for this Court to determine.  It was for the Tribunal to find the facts of the case, provided only that the Tribunal did not fall into jurisdictional error. 

22. I have reached the conclusion that there was no jurisdictional error in this case.  Consequently, the appeal must be dismissed. 

23. The order of the Court will be that the appeal be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            30 November 2005

The Appellant appeared in person.
Solicitor for the First Respondent:	Mr A Markus of Australian Government Solicitor
The Second Respondent filed a submitting Appearance.
Date of Hearing:	21 November 2005
Date of Judgment:	21 November 2005