SZGVA v Minister for Immigration and Multicultural Affairs

[2006] FCA 697

FEDERAL COURT OF AUSTRALIA

SZGVA v Minister for Immigration and Multicultural Affairs [2006] FCA 697

SZGVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 547 of 2006

COWDROY J
5 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 547 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVA
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

5 JUNE 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the costs of the first respondent in the sum of $4,440.

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 547 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVA
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	5 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Scarlett FM delivered on 18 October 2005. In that decision, Scarlett FM dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal.

   FACTS

2. The appellant is a Chinese national who arrived in Australia on 7 October 1994.  On 25 October 1994 he applied for a protection visa. In his application, the appellant said that he had been persecuted as a result of his Catholic faith and political beliefs. He said that in his role as deputy chief of his village, he had not followed the policy of the Chinese Communist Party by giving religious freedom to the people of his village. The appellant claimed that as a result, he had been dismissed from his position as deputy village chief and charged with ‘propagating superstition and organising illegal church, and destroying the uniting leadership of the [Chinese Communist Party]’. The appellant said that in February 1993 he was forced to ‘reform through labour’ but that shortly afterwards he fled to another town where he found a job. The appellant claimed that about six months later he was arrested and sent back to his home town. The appellant said that whilst awaiting a court decision, he fled to Australia on a false passport. The appellant also said that his family had been persecuted by the Chinese government after 1949 because of their involvement with the pre-Communist Party regime.

3. A delegate of the Minister refused the appellant’s protection visa application on 24 August 1995. On 13 September 1995 the appellant lodged with the Tribunal an application for review of the delegate’s decision.

4. On 15 January 1997 the Tribunal wrote to the appellant inviting him to attend a hearing of the Tribunal fixed for 9.30 am on 24 February 1997.  A further letter regarding the hearing was sent to the appellant on 24 January 1997, enclosing a form to be returned to the Tribunal.  The form, dated 3 February 1997, was returned to the Tribunal signed by Mr Peter Bollard, solicitor for the appellant, indicating that the appellant would attend the hearing and requesting a Cantonese interpreter.

5. The appellant did not attend the hearing. Mr Bollard attended and informed the Tribunal that he had forwarded the hearing offer letter to a more recent address of the appellant in Newcastle.

6. On 4 March 1997 the Tribunal dismissed the application. It wrote to the appellant advising him of the result and informing him that he had a right of appeal within 28 days of the date of the notification.  The letter was returned unclaimed.

7. In its Reasons for Decision, the Tribunal accepted the appellant’s claim that his forebears had suffered to a considerable degree. However, it stated:

   ‘While willing to accept that the Applicant has some links with Catholicism, I do not accept that he engaged in pro-Church behaviour to the extent which he has claimed.  I agree with the Minister’s delegate that he would not have maintained his official position from 1985 to 1992 had he been given to overt rejection of Party policies, including the insistence that Party officials not be associated with religion.  However, even if he had become an active  promoter of the church, his evidence is that this led to his sacking as an official and a brief period of less than a month of reform-through-labour.  He stated that he was able to re-locate, find another job and then obtain his passport and leave China.  The fact that he could so re-arrange his life leads to a conclusion that his misfortunes fell short of persecution.

   I do not accept that he was arrested in 1993 and forced to return in custody to his village until August 1994.  His application form indicates that he was in employment in Shenzhen during that period.  While noting the claim that someone else was responsible for this being stated in his application form and that this employment record was not the whole truth, I am not convinced that he would have omitted a claim to having been arrested even if he had some help with the form.

   …

   Connected with the rejection of his claim to have been arrested in China is a rejection of his very brief account of having obtained a passport in another name. Like the delegate, I reject the Applicant’s claim that he used a false identity to obtain his passport. His passport carries a photograph of the Applicant and names him as Luo Puqi, giving his occupation as ‘employee, and bears the same birth date as that given in his application. This is incontrovertible evidence that he used his own name to obtain I [sic] and if he did so then his claim that he was so at risk that he was forced to assume another identity will not hold.’

   APPEAL TO FEDERAL MAGISTRATES COURT

8. On 21 July 2005, approximately eight years after the decision of the Tribunal, the appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision. The grounds of the application were that the appellant would be persecuted if were to return to China and that the Tribunal failed to understand his claim and to consider relevant matters.   The appellant also claimed that the Tribunal refused his application without proper grounds and without proper investigation and refused to accept that the appellant had a well-founded fear of persecution. 

9. The first respondent filed a Notice of Objection to Competency on the ground that the appeal had not been lodged within 28 days of notification of the Tribunal’s decision as required by s 477(1A) of the Migration Act 1958 (Cth).

10. Scarlett FM heard the appeal and delivered judgment on 18 October 2005. In his Reasons for Judgment, his Honour considered and rejected each of the grounds of appeal raised by the appellant and found the Tribunal’s decision contained no reviewable error. His Honour also considered that the delay was unwarrantable. Accordingly, his Honour found that even if there had been a reviewable error, he would have exercised his discretion to refuse the appeal on those grounds.

    LEAVE TO APPEAL

11. The appellant appealed the decision of Scarlett FM to this Court. Because the appeal was filed out of time, leave to appeal was required. On 30 March 2006 Jacobson J granted leave to appeal on the basis that there was an arguable claim that the Tribunal had failed to consider properly his claimed fear of persecution on religious grounds.

    FINDINGS

12. In the hearing today the appellant stated that he would definitely be persecuted if he returned to China. He said that Christianity in China is prohibited. However, the appellant was unable to point to any legal errors contained in Scarlett FM’s decision.

13. I have reviewed the decision of the Tribunal and of Scarlett FM. Having heard the statements of the appellant at the hearing today, it appears that the appellant may have been able to clarify some of the evidence which was before the Tribunal had he appeared before it. It may be that the Tribunal would then have reached different conclusions in respect of certain factual matters, such as his use of a false passport and his activities whilst in the position of deputy village chief, which in turn may have changed the result of his application.

14. However, these issues are factual matters which are for the Tribunal to determine. By not attending the hearing of the Tribunal, the appellant deprived himself of an opportunity to explain his claim to the Tribunal. On the evidence which was before the Tribunal, its findings were open to it. The Tribunal’s factual findings cannot now be called into question before this Court.

15. In respect of jurisdictional error, Jacobson J on the leave application considered there may be an arguable case that the Tribunal failed to deal with the claimed fear of persecution on religious grounds. Whilst I agree that there is an arguable case on this ground, taking all the Tribunal’s findings into consideration, I do not consider that it can succeed. The claims for persecution on religious and political grounds were interconnected. Although the Tribunal’s reasons describe the appellant’s claim as a claim for persecution for reasons of political opinion, the Tribunal clearly considered the material relating to the appellant’s Catholicism. The Tribunal found that the appellant’s religious practices were not as extensive as he claimed, and that in any event the appellant’s claims of mistreatment by the authorities would not amount to persecution. I am satisfied that the Tribunal’s reasons considered both his political opinion and his religious beliefs as grounds of his application.

16. I cannot discern any other jurisdictional error in the decision of the Tribunal which would justify the decision being set aside. Accordingly, the decision of Scarlett FM must be upheld.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:             6 June 2006

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms S A Mason
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	5 June 2006
Date of Judgment:	5 June 2006