SZHAB v Minister for Immigration and Citizenship

[2007] FCA 1207

FEDERAL COURT OF AUSTRALIA

SZHAB v Minister for Immigration and Citizenship [2007] FCA 1207

SZHAB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 972 OF 2007

STONE J
10 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 972 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHAB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE  J
DATE OF ORDER:	10 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

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 972 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHAB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE  J
DATE:	10 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China, from Fujian province, who arrived in Australia on 3 August 2004.  Shortly after her arrival she applied for a protection visa claiming to be a victim of persecution in China because of her religious beliefs.  Her application was refused in turn by a delegate of the first respondent and the Refugee Review Tribunal.  Her application to the Federal Magistrates Court for judicial review was dismissed.  She now appeals to this Court.

2. Before the Tribunal the appellant claimed to have a well founded fear of persecution because of her participation in the Shouters sect.  The appellant outlined her involvement, in particular her teaching religion at a kindergarten established by the Shouters sect.  The appellant claims that in 2001 she and others were arrested and lost their jobs as teachers.  In 2002 the appellant commenced teaching at a special school established for Shouter children.  The appellant claims that in 2004 she was arrested and beaten.  The appellant claims that her cousin assisted her escape from China by bribing officials.  The appellant was pregnant at the Tribunal hearing and claimed to fear that her child would be harmed by the authorities if she were to be returned to China.

3. The Tribunal found the appellant was not credible in respect of key aspects of her claims which led the Tribunal to conclude that the appellant was not in genuine fear of persecution and there was not a real chance of persecution on her return to China.  The Tribunal did not accept that the appellant was a member of the Shouters as she was unable to provide any detail about the sect over and above general and fairly commonly known features.  The Tribunal found this level of knowledge inconsistent with the appellant’s claim of long term involvement with the sect.  Similarly, the Tribunal found the appellant’s patchy knowledge of the Bible inconsistent with her claim to have read the Bible on a regular and longstanding basis.  Given her lack of religious knowledge the Tribunal did not accept that the appellant was involved in setting up a kindergarten under the umbrella of the Shouters sect or that she was preaching to children. 

4. At the Tribunal hearing the appellant submitted a letter purporting to support her claim to membership of a church in Australia.  The Tribunal did not attach any weight to the letter because it was “vague in the extreme, having no letterhead or relevant detail”.  The appellant was unable to provide any details about the church she claimed to attend in Australia such as its name or location.

5. Because the Tribunal did not accept the appellant’s claim of genuine religious conviction and involvement with the Shouters sect, it rejected her claims to fear harm should she be returned to China.  Similarly, the Tribunal also rejected the appellant’s claim that she would be constrained in the practice of her religion. 

6. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court on 23 August 2005.  She claimed a variety of grounds for review, many of which merely challenged the Tribunal’s findings on the facts.  Others claimed that the Tribunal had made errors of law in failing to comply with s 91R and failing to consider independent country information, in failing to accord the appellant natural justice and in failing to comply with its obligations under ss 424A and 425 of the Act.  In particular the appellant, who was pregnant at the time of the Tribunal hearing, said that she was feeling unwell at the hearing and unable to think clearly.  The appellant also alleged that the Tribunal had made jurisdictional errors in that it identified a wrong issue, ignored relevant and important facts, made erroneous findings and reached its conclusion in a way that affected the exercise of power. 

7. The Federal Magistrate rejected the appellant’s claims.  He found that the findings made by the Tribunal were open to it on the evidence and that there was no evidence of jurisdictional error.  The assertion that the Tribunal committed jurisdictional error by exceeding its powers was unparticularised and could not be sustained.  In relation to the alleged breach of s 425, based on the appellant’s pregnancy at the hearing, His Honour noted that although the decision record of the Tribunal revealed the appellant was pregnant it did not indicate that she was feeling unwell and there was no medical certificate or transcript to suggest as such.  This ground could not be sustained.

8. In relation to the alleged breach of s 424A, his Honour found that the decision was based on the appellant’s level of knowledge, information which was provided by the appellant at hearing and as such came within the exclusion of s 424A(3).  The Tribunal’s doubts regarding the letter from the church in Australia were discussed with the appellant at hearing.  His Honour also rejected the claim that the Tribunal should have made enquiries about the letter that the appellant submitted.

9. The notice of appeal to this Court alleged that the Federal Magistrate erred in law and should have found that the Tribunal had failed to comply with its obligations under s 424A(1) of the Act and had failed to consider the appellant’s claims fairly.  At the hearing of the appeal the appellant made articulate submissions that were, unfortunately, all directed to the merits of the Tribunal’s decision.  They touched on matters that had been raised before the Federal Magistrate such as the pressure she was under at the Tribunal and which was compounded by the late stage of her pregnancy.  She also raised difficulties she had in understanding what was meant when the Tribunal asked her about the church she went to in Australia.  The appellant said that she was confused about whether the Tribunal was asking about the denomination of the church or its physical location.  Because of this confusion she merely said that she did not know.  As Ms Nanson, who appeared for the first respondent, observed, this was a plea for merits review without any evidence.

10. I am conscious of the difficulties that unrepresented litigants confront in challenging decisions made by the Tribunal.  Inevitably they see the task of the Federal Court and indeed the Federal Magistrates Court as reviewing the whole of the decision of the Tribunal, facts and law, and setting it aside if, as they contend, it is a wrong decision.  It is not surprising that the distinction between error of fact and error of law, not to mention jurisdictional error, is not readily appreciated by someone who is a stranger in this country, who does not understand English and who has no legal training.  The distinction is difficult even for those who share none of those handicaps. 

11. With this in mind, I have examined the reasons of the Tribunal and the Federal Magistrate for myself.  I can find no apparent error in the reasons of the Tribunal.  I agree with the Federal Magistrate’s reasons for rejecting the application for review of the Tribunal’s decision.

12. The appeal should be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .

Associate:

Dated:       10 August 2007

The appellant appeared in person, assisted by an interpreter
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	8 August 2007
Date of Judgment:	10 August 2007