SZFFJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1835

FEDERAL COURT OF AUSTRALIA

SZFFJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1835

SZFFJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1324 OF 2005

EDMONDS J
7 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1324 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFFJ
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

7 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s 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 1324 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFFJ
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	7 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

EDMONDS J:

1. The appellant is a citizen of the Peoples Republic of China who arrived in Australia on 1 May 2004 and applied for a protection visa on 1 June 2004.  His application was refused by a delegate of the Minister on 8 June 2004 and, on 7 July 2004, he applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal handed down its decision affirming the decision of the delegate on 18 November 2004. 

2. The appellant claimed that he was a Christian and a member of the underground Shouter’s Church in the Peoples Republic.  The Tribunal accepted these claims and accepted that he had distributed some material for the church and helped to organise its leader’s program.  The appellant further claimed that he had become ‘one of the most important members’ of the organisation and that he had been arrested, detained and mistreated by the authorities as a result of his activities.  In 2004 his activities had come to the attention of the authorities again.  As he was in immediate danger, the leader of the church, referred to in the Tribunal’s reasons as Priest He, arranged for his escape from China.  The Tribunal did not accept these later claims and set out its reasons for not accepting them. 

3. Before the Tribunal an issue arose as to the appellant’s identity.  He claimed that the name on the passport he had used to enter Australia and in which he had applied for a visa was not his real name.  He produced a Chinese identity card in the name that he claimed was his real name.  In the end, while it was not satisfied that he had changed his name in order to hide his identity from the authorities for any Convention-related reason, the Tribunal decided to give the appellant the benefit of the doubt and accept that he was the person he claimed to be. 

4. The Tribunal also considered whether the appellant would have a well-founded fear of persecution as a result of being a member of an underground Christian church, or on account of his more generalised objections to the restrictions on political and religious freedom in China.  It concluded that he did not face a real chance of harm amounting to persecution on either basis.  The amended application filed in the Federal Magistrates Court took issue with various aspects of the Tribunal’s factual findings, rejecting important elements of the applicant’s claim.

5. These contentions culminated in the allegations of bias, ignoring his claims on purpose (which might be viewed as a sub-set ground) and that the Tribunal had apparently confused right and wrong.  Ultimately and summarily, this was expressed on the basis that the Tribunal had not ‘assessed his application fairly and carefully’.  It was also contended that the Tribunal had failed to comply with s 424A of the Act by failing to provide the appellant with particulars of country information, in particular, information regarding unregistered churches in China.

6. Federal Magistrate Barnes dealt with each of these complaints and concluded that none of them was made out.  Her Honour also dealt with a further six points ‘...which overlap with the grounds and particulars in the amended application’.  These were points which had been raised by the appellant at the hearing and she ultimately concluded that all of them were without substance.  On the issue of compliance with s 424A, her Honour said at [33]:

   ‘The information that was ultimately used by the Tribunal in a manner adverse to the applicant stemmed primarily from the evidence he gave at the hearing and in writing to the Tribunal.  Such information is outside s.424A.  The Tribunal is not obliged to put its reasoning process to the applicant pursuant to s.424A or otherwise ….’

7. Her Honour then refers to the decision of this Court in Commissioner for Australian Capital Territory State Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and goes on:

   ‘This is not a case in which issues arise from the principles in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry [2001] FCA 919. Insofar as the Tribunal referred to changes in the applicant’s evidence and inconsistency this was a reference to changes in his evidence and inconsistencies arising in the course of the Tribunal hearing. Finally, the non-acceptance of aspects of the applicant’s claims is not of itself material that is subject to an obligation under s.424A(1).’

8. The notice of appeal in this Court is grounded in general terms: (1) that the Federal Magistrate erred in law; and (2) that the Federal Magistrate was wrong in finding that the Tribunal acted properly in its findings.  The notice of appeal does not identify any alleged error in the reasoning of Federal Magistrate Barnes, although there was filed, in support of the appellant’s case, written submissions signed by the appellant which, according to him, had been prepared by an unidentified migration agent. 

9. The thrust of these submissions was grounded in difficulties which the appellant alleges were experienced by the interpreter in understanding questions which were put by the Tribunal and in accurately responding to those questions.  The particular parts of a transcript relied upon by the appellant were reproduced in the English and Chinese languages in the written submissions.

10. Having reviewed these passages and, assuming for this purpose that I can rely on these reproductions as an accurate record (I was informed that no transcript had been tendered before the Federal Magistrates Court and, indeed, no transcript was relied on), I have concluded that the concerns raised by the appellant as to the difficulties experienced by the interpreter have no bearing on the grounds of appeal.  There are at least two reasons for this. 

11. First, the passages to which I was taken as indicating the difficulties experienced by the interpreter comprised questions which were put by the Tribunal to the appellant which were designed to test the veracity of his claim of Christianity and his membership of the underground Shouters Church in China.  Notwithstanding the difficulties that were experienced by the interpreter, and they appear to be apparent from the transcript which was produced, the Tribunal accepted the appellant’s claims in relation to such matters. 

12. The second reason why I do not think these difficulties bear on the grounds of appeal is because I am not satisfied that the passages of the ‘transcript’ to which I was taken indicate that the appellant was effectively denied the opportunity of presenting his case.  In other words, I do not think these difficulties led to the Tribunal being unable to carry out the obligations imposed on it by s 425 of the Act.

13. It was submitted on behalf of the respondent that the Tribunal’s decision turned on its findings of fact and its rejection of critical elements of the appellant’s claims.  I agree with those submissions.  They were essentially credibility findings and they were clearly open to the Tribunal on the material before it.  Federal Magistrate Barnes was correct to conclude that the Tribunal’s reasons do not provide any support for the contention that it was biased or did not properly consider the appellant’s claims. 

14. As to non-compliance with s 424A of the Act, counsel for the respondent conceded that it was arguable that the fact that the appellant had travelled to Malaysia and Singapore in August 2003, played some part in the Tribunal’s conclusion that he did not have a genuine fear of persecution because he had returned to China voluntarily, and was ‘information’ within the meaning of subs 424A(1). 

15. He further conceded that the Tribunal appeared to have initially obtained that ‘information’ from the photocopy of the appellant’s passport which had been submitted with his primary visa application and finally concedes that, without more, these circumstances would raise a question as to whether s 424A required the Tribunal to alert the appellant in writing to the contents of his passport and the potential significance of what it showed.  Reference might be made to the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

16. However, as counsel for the respondent pointed out and as a review of the Tribunal’s reasons makes plain, having been shown his passport at the hearing, the appellant himself conveyed the critical facts, that is, the dates of his travel and where he had been, to the Tribunal.  It is not clear whether he was reading these details from the passport or stating them from memory but it is clear that he stated these matters to the Tribunal as facts.

17. To the extent that the details of his overseas travel constituted ‘information’, it was information that the appellant gave to the Tribunal for the purposes of its review and it therefore came within the exception in par (b) to subs 424A(3).  For those reasons I agree with the respondent’s submission that the Federal Magistrate did not err in concluding that the present case was not one in which the principles identified in Minister for Immigration and Multicultural Affairs vAl Shamry (2001) 110 FCR 27 applied. For those reasons the appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:             16 December 2005

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	7 December 2005
Date of Judgment:	7 December 2005