SZHCD v Minister for Immigration and Citizenship

[2007] FCA 1115

FEDERAL COURT OF AUSTRALIA

SZHCD v Minister for Immigration and Citizenship [2007] FCA 1115

SZHCD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 853 OF 2007

BESANKO J
1 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 853 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHCD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

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 853 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHCD
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	1 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate.

2. The appellant was born in the People’s Republic of China on 4 December 1963. On 8 January 2005, he came to Australia with his wife, who also has an appeal before this Court.

3. On 17 February 2005, the appellant 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 15 March 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant’s application for a protection visa. On 15 April 2005, the appellant applied to the Refugee Review Tribunal for a review of that decision. The appellant was invited to a hearing of the Tribunal and he gave oral evidence to the Tribunal. On 9 August 2005, the Tribunal affirmed the decision not to grant a protection visa to the appellant. The appellant issued an application in the Federal Magistrates Court seeking constitutional writs in relation to the decision of the Tribunal. On 8 May 2007, the Federal Magistrates Court made an order dismissing the application and the appellant now appeals to this Court.

4. The appellant’s wife also appealed against the order of a Magistrate dismissing her application for constitutional writs in relation to a decision of the Tribunal. The appeals were heard together.

5. In his application for a protection visa, the appellant made claims which were in similar terms to the claims made by his wife in her application for a protection visa. A summary of the claims is as follows.

6. The appellant said that he became a Christian in 1984. He said that there was no freedom of religion in China. He said that he was the leader of a small church and that he and his wife practised their Christianity. The appellant said that they were warned by the authorities from time to time and they prayed in secret. He said that in March 2004, he and his wife were arrested by the police and detained for four days for questioning. He said that they suffered mental and physical torment from the Chinese Communist Party and that they were questioned about their relationship with overseas churches. He said that they were released only after bribing government officials. He said that they paid a large sum of money for their respective passports and got a visa to come to Australia in December 2004.

7. As with his wife, the claims, albeit in an abbreviated form, were repeated in his application for review.

8. In his reasons for decision, the Tribunal member referred to the claims set out in the application for a protection visa and in the application for review. The Tribunal member asked the appellant how he prepared his application for a protection visa and his application for review. The appellant said that he had not written them and that a friend of a friend had done it. The appellant said that he had not told this person what to write, nor had he given him any details about himself. The Tribunal member asked the appellant if he knew what had been written in the applications and he said that he had “only had one or two years of education and could not even write his name well in Chinese”. The appellant said that the person who had completed the two applications had not told him what he had written in the applications.

9. The Tribunal member asked the appellant if he was afraid to return to China, and the appellant said that he was afraid. He said that he was not inclined to go back to China because his child was still young and he explained that his child was 16 years old and was studying his first year of senior high school in Sydney. The Tribunal member asked the appellant if there was any other reason why he did not want to go back to China and the appellant said that he thought many aspects of Australia were better than China. He said that people in Australia have a good attitude, provided good service, were courteous and respected each other. He said that he had had an argument with his neighbour in China and because of this he did not want to return. The appellant was asked about his other child who was still living in China. The appellant said that she was 19 years old and was studying in her third year of senior high school. The Tribunal member asked the appellant if there were any other remarks or comments he wished to make and the appellant said that there was nothing else.

10. The Tribunal member noted that the appellant “disowned in their entirety” claims advanced in his application for a protection visa and his application for a review. The Tribunal member referred to the appellant’s evidence and said that he accepted his evidence about the provenance of his written claims and found that no weight whatsoever could be placed on them. The Tribunal member referred to the appellant’s evidence as to why he did not want to return to China and said that he accepted that all these concerns may be genuinely held by the appellant. The Tribunal member said that he was unable to identify in information before him any grounds for believing that the appellant had ever suffered serious harm in China for a Convention reason, or that there was a real chance that he would suffer serious harm for a Convention reason or for any other reason if he was to return to China. The Tribunal member said that he was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he returned to China, either now or in the reasonably foreseeable future, and he was not satisfied that the applicant was a refugee.

11. The Magistrate said that the case before him was not one in which the Tribunal had compared the information provided by an applicant in his application for a protection visa with the information provided to the Tribunal. The Tribunal accepted the appellant’s evidence as to the provenance of the written applications and considered the applications on the basis of the evidence presented to it.

12. The appellant claimed the Tribunal erred in not referring to any independent information, but the Magistrate rejected that claim on the basis that the Tribunal, having found that the appellant’s claims had no Convention nexus, was not required to proceed further and refer to any country information.

13. The appellant claimed that, due to his nervousness, he was not provided with a proper hearing, but the Magistrate rejected this claim on the ground that the appellant was assisted by a competent interpreter, and he gave evidence and was given an opportunity to comment on the issues before the Tribunal.

14. The Magistrate rejected a claim by the appellant that the Tribunal was biased. The Tribunal member said that the appellant’s reference to s 91R of the Act was unexplained. He said that he could not see that the matters contained in that section had “reference to the Tribunal’s decision”. The Magistrate also rejected the appellant’s complaint that the Tribunal member did not make his decision based on written submissions. He noted that no written submissions were made to the Tribunal and that there was nothing before the Court to show that the appellant had sought an opportunity to make submissions in writing. The Magistrate concluded by saying that he could not discern any jurisdictional error in the Tribunal’s decision and, in those circumstances, he dismissed the application.

15. The first respondent made written submissions on the appeal. At the outset of the hearing, the appellant, like his wife, claimed that he had not received the first respondent’s written submissions. I am satisfied on the evidence presented by the first respondent that the written submissions were sent to the appellant at the address provided by him in his notice of appeal. The interpreter read the written submissions to the appellant. The appellant did not ask me to adjourn the hearing of the appeal from Monday 30 July 2007 to Thursday 2 August 2007 to enable him to give further consideration to the written submissions although I indicated that I was disposed to do so if requested.

16. The appellant’s submissions to this Court are similar to those made by his wife in her appeal. They reveal a misunderstanding of the findings made by the Tribunal. The Tribunal accepted the appellant’s evidence about the provenance of his written claims and, therefore, put those claims to one side. On the evidence the appellant gave to the Tribunal, the Tribunal member found that the appellant had not established a well-founded fear of persecution for a Convention reason. The appellant also referred to s 424A of the Act, but nothing was said on the appeal to suggest that there was a breach of that section.

17. In my respectful opinion, the Magistrate was right for the reasons he gave and, in those circumstances, the appeal must be dismissed.

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

Associate:

Dated:        1 August 2007

The Appellant appeared in person
Counsel for the Respondent:	Ms B Nolan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 July 2007
Date of Judgment:	1 August 2007