SZFKI v Minister for Immigration and Multicultural Affairs

[2006] FCA 620

FEDERAL COURT OF AUSTRALIA

SZFKI v Minister for Immigration & Multicultural Affairs [2006] FCA 620

Migration Act 1958 (Cth) ss 422B, 424A, 425

SZFKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 237 OF 2006

MADGWICK J
9 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 237 OF 2006

BETWEEN:

SZFKI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

9 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs assessed in the sum of $3300.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 237 OF 2006

BETWEEN:

SZFKI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	9 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:  

1. This is an appeal, or a purported appeal, from a judgment of the Federal Magistrates Court given on 19 December 2005 by Federal Magistrate Smith.  The Court dismissed the application made by the appellant, as I will call him, for judicial review of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’).  However, the fourth order made by his Honour was:  ‘These orders shall take effect on 31 January 2006’.

2. The Notice of Appeal was filed in this Court on 14 February 2006.  Mr Leerdam, the solicitor for the first respondent, surmises that Smith FM had in mind a procedure which would, for some reason or other, give the appellant some additional time in which to lodge any Notice of Appeal.  I agree that that is the probable explanation of what happened.

3. If leave to appeal should be necessary, I would accordingly grant it, but as presently advised, I do not think it is.  I will simply treat the matter as an appeal.

4. The Notice of Appeal, as Mr Leerdam points out, is defective.  It simply states, as the grounds for appeal: 

   ‘(1)     The learned Federal Magistrate erred in law.

   (2)The learned Federal Magistrate was wrong in finding that the Refugee Review Tribunal acted properly in its findings’.

5. The Notice of Appeal does not descend to any particular criticism at all of the learned Magistrate’s judgment.

6. Under the current system for hearing appeals such as this one in this Court, standard directions are made without any hearing by a judge or registrar.  The directions do not give the respondent guidance as to when and how criticism of a Notice of Appeal should be made.  No such criticism was made until the first respondent filed its outline of submissions on 4 May 2006.

7. The appellant’s English is limited, although he clearly has had access to advisors of some intelligence.  It is not clear to me that he has had sufficient opportunity to deal with the criticism of the Notice of Appeal and get it into proper form.  I think, therefore, that I should deal with the substance of what he says, rather than simply strike the Notice of Appeal out as incompetent and, as I understand it, that is the course ultimately proposed also by Mr Leerdam.

8. The appellant is of Chinese nationality, accepted by the Tribunal Member as a practising and sincere member of the Roman Catholic faith who followed his faith as a member of a Vatican-sanctioned ‘underground Catholic Church in China’.  Participation in such a church as distinct from the officially recognised, registered and, I assume, closely monitored, official Catholic Church, is illegal.

9. The information before the Tribunal, which was set out in greater detail by the Minister’s delegate and more helpfully than the Tribunal Member bothered to do, would support the proposition that, particularly in the south of China where the appellant hails from, economic development, and the rise of religious observance, have made it impossible for the Chinese authorities to prosecute everybody following ‘unofficial’ Christianity.  They apparently confine their attention, without any consistency of application across China, to people who play a leading role in organising or teaching in the underground churches, including the underground Roman Catholic Church or churches.

10. The appellant made particular claims.  He said that he was a businessman, and as such had been able to obtain premises to enable him to assist in the propagation of the faith of the church, and that he had had a particular role in selecting university students for higher religious instruction as anchorites for the Church.  He said that he and his associates had evaded detection for some time, but that after he came to Australia, events occurred which caused him to fear arrest or persecution should he return to China.  Although he gave a fairly detailed account of these matters, he did not provide any evidence other than his own assertions to support the claims when making his application for refugee status.

11. The delegate of the first respondent said:

    ‘The applicant has provided no evidence to support any of his claims to be at risk as a Christian in the PRC [People’s Republic of China].  In view all the relevant information and the ability of the applicant to obtain a passport and to leave the PRC and to return at will, I find that it is reasonable to conclude that his claims do not represent the reality of his situation’.

12. Despite his claims being criticised for want of being supported, the appellant, with the services of an advisor, chose before the Tribunal to engage in a repeat performance of his effort before the delegate, providing no further material or information at all, except in relation to questions which were asked of him by the Tribunal.  In terms, he simply adopted his earlier claims before the delegate.

13. The learned Federal Magistrate was critical of the Tribunal Member’s syntax and other matters.  The material does suggest that there was a departure in one particular by the appellant at the hearing before the Tribunal from what he had given in writing to the delegate.  The Tribunal Member made much of this, and of various other alleged inconsistencies concerning whether the appellant had been given information about developments in China by his mother on the telephone from mainland China, or by his sister, who lives in Taiwan.

14. The Tribunal Member did not explain very clearly, or, if I may say so, persuasively, why this would loom so large in his consideration of the matter.  However, he was the tribunal of fact in the position of an inquisitor.  He had the appellant before him; he was able to take advantage as best he might – although proceedings were conducted through an interpreter – of all the matters of impression which should give a person in his position unreproducible advantages over a reviewing court.

15. The fact is that the Tribunal Member disbelieved the appellant.  The Tribunal Member said:

    ‘The Tribunal does not accept [the appellant’s] claims that … he had been reliably advised that … he has been “listed as an internal target by the PRC authorities” as how he learnt this, who from, and how the person concerned was in a position to know changed in the course of the hearing from the claims made in his protection visa application.  Further, he does not claim that he has ever been arrested, detained, tortured, beaten, charged or even harassed in the past so he has a prior record.  Nor does he provide any evidence to support these claims.  In short, based on the unsupported claims made by the Applicant, the Tribunal has not been able to satisfy itself that he is of any interest to the PRC authorities for any reason whatsoever or that on 19 January 2002 he established a “station” of the underground church; he was its director and was in charge of its normal operations; its main activity was “to elect appropriate students from universities ... for the purpose of sending them to accept special religious training at a secret Catholic Training Centre of the underground church” and also to edit and print religious promotional materials.  It follows that the Tribunal finds that the Applicant has embellished his claims with the objective of enhancing his claim for a protection visa, and finds that this also goes to the matter of his credibility’.

16. The Tribunal Member went on to reject other matters which the appellant told the Tribunal arose after his arrival in Australia, and later referred to the appellant as a person who ‘has been found not [to] be a credible witness’ (that is by the Tribunal itself).  The Tribunal continued:

    ‘… given all the above, the Tribunal is satisfied that the Applicant has not had a high profile involvement in the underground church and is not of interest to the PRC authorities and does not accept that simply because he has grown up in Fujian and his family and church is there that he would not be able to move elsewhere in China ... It follows that the Tribunal is satisfied that if for any subjective reason the applicant does not want to return to Fuqing City, then he would be able to live elsewhere in China and remain a member of the underground Roman Catholic Church without there being a real chance that he would be subjected to serious harm amounting to persecution for a Convention reason on this basis.’

17. The Tribunal’s resort to independent materials – at least those that it cited – included some that verge on the eccentric, but there was solid material referred to by the delegate, which was before the Tribunal, in support of the Tribunal’s findings.  Some of the material

    
    
    

    cited by the Tribunal Member himself also appears to have provided a basis for the general view he had, that it was only high-profile members of the Church who need fear trouble. 

18. I am unable to say, of itself, that the rejection of the appellant’s application for review sounds in jurisdictional error.

19. The appellant did not expand, in his arguments before me, on the assertion that the learned Federal Magistrate had erred in law.  Smith FM seems to have given the matter careful consideration, and I am not satisfied that his Honour did err in law. 

20. The appellant sought to raise additional points before me based on s 425 of the Migration Act 1958 (Cth) (‘the Act’). Section 425(1) provides that:

    ‘The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.’

21. The appellant says that he therefore had a right to be provided with an oral hearing, but this did not occur.

22. No effort has been made to put the transcript of the hearing before the Tribunal into evidence before me, even though Smith FM referred to the absence of that evidence before him.  There clearly was an oral hearing.  The Tribunal Member clearly did raise with the appellant both the Member’s understanding of the general position of members of underground churches in China, and his concerns about matters that he regarded as going to the appellant’s credibility.

23. The appellant says that he had a right arising under s 425 to present arguments relating to the issues arising in relation to the decision under review, and that these included the various issues which the Tribunal Member ultimately relied upon to reject his claim. He says that he should have been given due notice of all of these. He says that he was not given due notice of all of the disputed points and that, if he had been given due notice, he might have been able to provide further information, although he says he could not have provided, in any event, any documentary information.

24. The appellant otherwise criticises the Tribunal Member’s consideration of the situation in China as superficial.  He suggests that the Tribunal Member’s consideration of his own position was likewise superficial, pointing out that the Tribunal Member would not know whether he had been to the Vatican.  His own account simply suggests that he had been to Italy in the past.  There was no reason for the Tribunal Member, it seems to me, to investigate this, or make a specific inquiry about it.  The appellant had every opportunity to raise any trip to the Vatican and events there, insofar as it might have helped his claim.  He said that he was telling the truth.  All of that really is simply to canvas matters of fact and to make factual criticisms of the delegate’s findings which do not amount to any jurisdictional error that might found judicial review.

25. The answer to the s 425 point, is that s 424A specifically deals with the subject of the Tribunal giving an applicant particulars of any information ‘the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. By reason of the appellant’s simple adoption of his story before the delegate as the foundation of his case before the Tribunal, the material given to the delegate was within the meaning of subs 3 of s 424A: ‘information...that the applicant gave for the purpose of the application’ before the Tribunal.

26. Section 422B says that Div 4 of Pt 7 of the Act, in which the various sections referred to occur, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the Division deals with.

27. Section 425 is directed, in my opinion, to an initial invitation. The appellant was certainly given such an initial invitation. It was specific, and there was no requirement that the Tribunal Member should give him any further indication of concern than he was given, so far as I can see.

28. It follows that there has been no jurisdictional error made by the Tribunal and, both for the reasons given by the learned Federal Magistrate in relation to the matters raised before

    
    
    

    him, and because of the inadequacy of the additional matters sought to be argued before me, the appeal must be dismissed with costs, assessed in the sum of $3300.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             24 May 2006

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	9 May 2006
Date of Judgment:	9 May 2006