SZHAK v Minister for Immigration and Citizenship

[2007] FCA 1116

FEDERAL COURT OF AUSTRALIA

SZHAK v Minister for Immigration and Citizenship [2007] FCA 1116

SZHAK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 797 OF 2007

BESANKO J
2 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 797 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHAK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	2 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the first respondent’s costs of the appeal.

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 797 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHAK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	2 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order made by a Federal Magistrate. On 1 May 2007, the Magistrate dismissed the appellant’s application for constitutional writs in relation to a decision of the Refugee Review Tribunal.

2. The appellant is a national of the People’s Republic of China. He arrived in Australia on 17 March 1999, and on 6 May 1999 he lodged an application for a Protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”). On 24 May 1999, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa to the appellant. There was a problem with the notification given to the appellant and, on 20 June 2005, the appellant was given notice of the decision pursuant to s 66 of the Act. On 26 June 2005, the appellant applied to the Tribunal for a review of that decision. The Tribunal heard evidence from the appellant. On 10 August 2005, the Tribunal decided to affirm the decision not to grant a protection visa to the appellant. On 25 August 2005, the appellant made an application to the Federal Magistrates Court for constitutional writs in relation to the decision of the Tribunal. As I have said, on 1 May 2007 a Federal Magistrate made an order that the appellant’s application be dismissed and the appellant appeals to this Court against that order.

3. In his application for a protection visa, the appellant provided a detailed personal statement. In that statement the appellant said he was a citizen of the People’s Republic of China. He said that he travelled to Australia on 17 March 1999 under a false name. He said that he was born in Fuqing City of Fujian Province on 5 October 1970. He said that he did not receive a proper education and he went to work in an organic chemical factory. The salaries paid to workers in the factory were low and many workers were out of work for long periods of time. The appellant said that he became a supervisor at the factory and that he began protesting against the working conditions in the factory. He became one of the organisers and was arrested on several occasions. He said that he was regarded as a very dangerous person by the local government. In early 1998, a number of workers lost their jobs and their living conditions were extremely poor. The appellant said that he was arrested at the site of a protest against the government and he was put in jail without a sentence. The appellant said that he was denied a passport because of his police record and that he borrowed a sum of money and purchased a passport with a valid Australian visa. He fled to Australia. The appellant said that when he spoke to his family in China over the telephone, he learned that the authorities were very angry about his escape from China. The appellant said that he feared going back to China.

4. When the application for review came before the Tribunal the appellant said that the claims he made in his application for a protection visa did not represent his refugee claims. He said that his then adviser had put forward claims which did not reflect what the appellant had told him. He said that the real reason he left China was because of religious persecution directed towards him because he was a Christian. In addition, he had suffered harm in the past because of the implementation of the one-child policy and he had become a Christian in the period after that experience. The appellant made it clear to the Tribunal that his sole claim for refugee status was his fear of being persecuted because he was a Christian. He said that he was a member of a Chinese underground church.

5. The Tribunal found that the appellant had used two identities. The first was the name recorded in the passport and used in Australia and the second was the name recorded on his identity card and claimed to be his correct name. The Tribunal said that it was not satisfied that the appellant’s use of the passport without more demonstrated that he was unable to obtain a genuine travel document in this own name because of adverse attention from the authorities in the People’s Republic of China. The Tribunal said that it would consider his new claims on their merits and that it would draw no adverse conclusion either from the omission of those claims from previous statements he had made or discrepancies between his current claims and his earlier claims. The Tribunal said that the appellant’s presentation of his claim to fear persecution on the basis of his Christian faith was “wholly unconvincing”. It said that his knowledge about Christianity was “limited and rehearsed”. He was unable to provide specific information to substantiate his claimed involvement in an underground church. The Tribunal found that the appellant was not in fact involved in any church after he arrived in Australia. The Tribunal said:

   “All of the above factors, combined – the applicant’s knowledge, religious practice in China and religious practice in Australia – leave the Tribunal unsatisfied that the applicant is a Christian, or will be perceived as one by the PRC authorities or anyone else. The Tribunal concludes that the applicant is a witness of low credibility. It is also not satisfied that the applicant has suffered harm, let alone persecution, for reasons of his now rejected Christianity or for any other reason.”

6. The Tribunal was not satisfied that the appellant was detained for about a week in 1994. The Tribunal was not satisfied that the appellant had a “well-founded fear of persecution for reasons of religion (imputed), political opinion or for any other Convention reason, now or in the reasonably foreseeable future if he returns to China”. The Tribunal concluded that the appellant was not a refugee.

7. The Magistrate referred to various grounds raised by the appellant on his application for constitutional writs. He rejected each ground and he dismissed the application. He referred to the appellant’s claim that the Tribunal had acted in breach of s 424A of the Act and he rejected it because it was not particularised, nor was it apparent to him that any material in the Tribunal’s decision fell within s 424A. That is the only ground raised before the Magistrate which is pressed on the appeal.

8. On appeal to this Court, the appellant reiterated his claim that there had been a failure by the Tribunal to comply with s 424A of the Act. A number of general principles relating to the scope of that section are set out in the notice of appeal. However, no particulars are given as to how it is said the Tribunal failed to comply with s 424A of the Act. The Tribunal said that it would not draw any adverse conclusion from the omission of the claims made to it from previous statements made by the appellant or discrepancies between earlier statements and the statements made to the Tribunal. In other words, it put to one side the statements made by the appellant in his application for a protection visa and the fact that those statements had been made was not used against the appellant in any way. In essence, the appellant failed before the Tribunal because his evidence was not accepted by the Tribunal. The provisions of s 424A were not engaged and this ground of challenge fails.

9. The appellant raised two other grounds of challenge on the appeal which had not been raised before the Magistrate. First, he submitted that the Tribunal had breached s 91R(3) of the Act. He did not explain how it was said that the Tribunal had breached that section. The Tribunal referred to the appellant’s conduct in Australia, but it did not approach the matter in a way which infringed s 91R(3). Secondly, the appellant submitted that the Tribunal should have given him an opportunity or a better opportunity to present documents to it. The respondent’s response to this contention is correct. When he was invited to a hearing of the Tribunal the appellant was invited to provide any new documents or written arguments he might want the Tribunal to consider. The Tribunal was not required to do anything more. Both these new grounds of challenge fail.

10. For these reasons, the appeal must be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        2 August 2007

The Appellant appeared in person
Counsel for the Respondent:	Ms G Broderick
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 July 2007
Date of Judgment:	2 August 2007