SZHCW v Minister for Immigration and Citizenship

[2007] FCA 688

FEDERAL COURT OF AUSTRALIA

SZHCW v Minister for Immigration and Citizenship
[2007] FCA 688

SZHCW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
NSD 293 OF 2007

RARES J
3 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 293 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHCW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	3 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent fixed in the sum of $2,100.

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 293 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHCW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	3 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. The appellant is a citizen of the People's Republic of China who arrived here in September 2004.  He lodged an application for a protection visa in October 2004 which was refused by a delegate of the Minister in March 2005.

2. The appellant claimed to be involved in the Shouters sect of the Christian church in China.  That sect is an underground and unofficial church not sanctioned by the Chinese authorities.  The appellant claimed that he had been baptised because both his parents were pious Christians but that he had not been allowed by them to participate in religious practices or gatherings before graduating from the middle school.

3. By 1991 he began to participate in, so he claimed, church activities and did so regularly until leaving China in 2004.  He claimed that in 2000 a number of leaders of the church established a commercial enterprise in which he assumed a management role.  The enterprise involved a rural activity.  The appellant also claimed to have arranged and managed training classes for new believers of the underground church, usually involving around 60 or 70 people.  By having these persons come to the rural enterprise under the guise that they were receiving training in the enterprise business and techniques, he claimed that persons associated with the enterprise including himself from time to time were questioned by the Public Security Bureau, police and other local government officials of China and that from time to time searches were made of trucks carrying produce away from or to the enterprise.

4. The appellant claimed that in August 2004 he had been asked by others in the church to copy and bind some bibles that had been supplied from Hong Kong.  He claimed that, when returning from an early morning delivery of a portion of the bibles to the home of one of the church leaders, he noticed many armed policemen surrounding the farm.  He claimed then to have fled and to have arranged to obtain a passport under a false name.

5. The appellant was invited to, and gave evidence to, the tribunal.  At the hearing before the tribunal he produced a copy of an identification card issued by Chinese authorities in what he said was his real name, which gave a different name, date and place of birth to that contained in the passport.

6. The tribunal recorded in its statement made pursuant to s 430(1) of the Migration Act 1958 (Cth) the claims which the appellant had made in his protection visa application, his application for review and those he articulated at the hearing. In essence, as the tribunal identified at the outset of its questioning, his claim was that he had a genuine fear that he would be harmed or persecuted were he returned to China because of his religious beliefs and his involvement in the practise of the Christian faith in the Shouters sect.

7. The tribunal recorded that it had asked the appellant to elaborate on his beliefs beyond a simple statement that he was a Christian and believed in Jesus.  It noted that he had paused for a considerable time and asked the tribunal to repeat the question and then provided no answer.  The tribunal noted that it pointed out to the appellant that it was important for it to have an understanding of his religious beliefs and practices because his claim was that they had given rise to his fear of the Chinese authorities.  He responded by saying that he was a Christian and believed in Jesus and that Jesus would save him.  Next, the tribunal asked the appellant about his religious practices and he stated that he practised in private and secret church activities.

8. The tribunal’s questioning also involved asking him to explain what the training sessions referred to in his claim for a protection visa involved.  He responded that young brothers were assisted to participate in the church.  The tribunal then asked the appellant about this participation and he said that the training was about how to believe in Jesus.  The tribunal probed by asking the appellant if he could explain how to believe in Jesus and he responded it was about how God loved us and that he dedicated his son to people to save them.

9. The tribunal also asked the appellant in the course of the hearing about his claim to have entered Australia on a false passport and about the identity card which he produced in the other name.  It noted that it appeared to the tribunal that the passport contained an accurate photograph of the appellant but that the identity card had a photograph that did not closely resemble him.  He had responded that that was an earlier photograph of him, the card being issued in 1999 whereas the passport had been issued in 2004.

10. Towards the end of its questioning, the tribunal informed the appellant that it was not convinced that he was in fact the person referred to in the identity card.  Rather, the tribunal told him it was minded to regard him as the person who was in fact named in the passport.  The appellant responded that his application for review had been lodged in the false name, with his date of birth as that in the passport and not his true date of birth, because the immigration adviser acting for him had filled out the forms.  The tribunal pointed out that in fact the appellant was claiming to be the person named in the identity card.  The tribunal then raised with him its concerns as to the genuineness of his claims, in particular, the concern that he was not the person in the passport and that the tribunal was not satisfied that he had explained to it in the hearing that in fact he was involved, as he claimed, with the Shouters Church in China.  The tribunal recorded that it asked the appellant if he wished to comment.  The appellant repeated that his adviser had not provided all the information on the person whose name was on the identity card, even though the appellant had given the adviser all those details.  He then said that he did not have anything else to add.

11. It may well have been unfortunate that the tribunal, if the summary in its s 430(1) statement is accurate, combined the questions about the identity of the appellant with his religious participation. He may have felt overwhelmed about the former in answering the latter. However, it suffices to say that the tribunal gave a full opportunity to the appellant to elaborate upon his claims and to address difficulties about the claims he was making which the tribunal considered important to raise with him during the hearing.

12. The tribunal then set out its reasons and findings towards the conclusion of its statement under s 430.  It said that it did not accept that the appellant was a member of an underground Christian church in China and that because of this activity he came to the adverse attention of the Chinese authorities so as to necessitate his illegal departure from China.  It found that the appellant’s oral evidence in respect of his claim of his religious convictions and the nature of the church he claimed to belong to ‘to be so vague, ambiguous and generalised that the Tribunal cannot be satisfied that [the appellant] belonged to or was ever involved in an underground Christian group in China’.

13. The tribunal went on to note that invitations had been given during the hearing to outline some details of the church, his religious beliefs and practices but that the appellant had failed to provide any meaningful detail to the tribunal.  This led it not to be satisfied as to his involvement in an underground Christian church.  The tribunal also said that it did not accept that the appellant was a person of any particular religious persuasion and, accordingly, did not accept that there existed a real chance that he would face harm on his return to China by reason of religion.

14. Last, the tribunal found that the appellant’s oral and written evidence provided in respect of his claim to be the person in the identity card, rather than the person in the passport, was unconvincing.  It did not accept that he had departed China on a false passport.

15. The tribunal concluded that it was not satisfied that the appellant was a person who had a well-founded fear of persecution for a Convention reason were he to return to China.

16. The trial judge dismissed the application on the basis that he was unpersuaded that the tribunal had made any jurisdictional error.  The appellant’s notice of appeal raises the following grounds:

    (1)The tribunal failed to comply with s 424A(1) of the Act because it did not give him information to which that section related.

    (2)The tribunal failed to comply with its obligation under s 425 of the Act because he had not been given a genuine chance to give oral evidence or to present his argument against the issues arising in the review by the tribunal.

    (3)The tribunal failed to consider the appellant’s claims properly and fairly, ignored relevant information and material, made a mistake in relation to an important finding of fact and failed to give him an opportunity to comment on a matter.

17. None of these grounds has been particularised in any way.  The appellant made oral submissions this morning based on some material which a friend had assisted him in preparing.  In essence, he complained that the tribunal had presupposed that the underground church with which he was involved had a structure and that it had formed an adverse view as to his credibility because he could not explain that structure.  He said that in fact there was no such structure and, accordingly, there was no reason for him to explain it or for the tribunal not to accept him on this basis.

18. However, the tribunal’s reasoning process focused on the appellant’s inability to explain his claimed religious convictions and the nature of the church to which he claimed to belong.  His claim for a protection visa had set out the activities which he claimed he had undertaken in some detail.  But it was open to the tribunal to inquire, as it did, into the nature and extent of the appellant’s beliefs and, among other things, what he did in the church to practise them and to train others in them.

19. There was no evidence, other than the tribunal’s s 430 statement, as to what occurred at the tribunal’s hearing.  That statement gives no basis for suggesting that the tribunal proceeded otherwise than genuinely and fairly to inquire into the appellant’s claims. 

20. The appellant also complained that the explanation he gave to the tribunal of his religious activities was found by the tribunal, so he submitted, to be inconsistent with independent country information and that the tribunal, so he said, thought that only the leaders of the church could be punished.  He said that that had not been put to him by the tribunal and that no notice under s 424A(1) had been furnished by the tribunal in that regard.

21. The findings and reasons of the tribunal, set out in its s 430 statement, do not advert to any reason referring to independent country information which could be characterised in the way the appellant addressed on orally today.  Rather, the tribunal reasoned that the explanation given by the appellant in response to its oral questions was not enough to have the tribunal accept that he was a person who had the knowledge of Christian beliefs or the involvement in a Christian church which he claimed.  It was for the tribunal to form its own view about those matters and it seems to me from reading the s 430 statement and, in particular, the findings and reasons section of it, that the tribunal did not act in a way which reveals that it committed any jurisdictional error.

22. The appellant also orally submitted that the tribunal had to ensure that he understood why any country or other information the tribunal was going to rely on in reaching its decision was relevant so that he could be invited to comment on it and explain it.  No doubt s 424A(1) requires that in terms of information with which that section is concerned.  But, the effect of s 422B of the Act is to limit or define the extent of the natural justice hearing rule applicable to a situation such as the present.  Here the tribunal was questioning the appellant directly about his own knowledge, practices and beliefs to do with his claim to be a member of an underground church.  He was being given an opportunity in accordance with s 425 to give evidence and present arguments relating to issues arising in relation to the decision under review.

23. It may be possible for criticisms to be made of this process in the sense that people who are shy, overwhelmed, inarticulate, uneducated and the like may not be able to give an account to the tribunal which properly or accurately describes their full circumstances.  Indeed, the whole theory of persons being able to be represented by others skilled in advocacy or representation is based on the fact that this is a common feature of human society.  However, the Parliament has resolved that the way in which these claims are to be assessed is through the tribunal constituted in the way it is under the Act.  But, even bearing that limitation in mind, I am of opinion that a fair reading of the statement prepared by the tribunal in this case shows that it gave the appellant as much as opportunity as he could fairly have expected to explain his case in his own words.  It cannot be an error of the tribunal if an applicant for review fails to give a full account of his own beliefs and practices when he is asked by the tribunal to do so.  I do not see any jurisdictional error in the way in which the tribunal approached its task.  Indeed, it seems to me that it attempted to do so in a fair and appropriate way.  I reject ground 1 of the notice of appeal.

24. I have already partly dealt with the complaint under s 425 where, in oral submissions this morning, the appellant complained that the Tribunal had not put forward to him its doubts clearly or accurately and that, therefore, he had not been able to put his argument based on those doubts.  I am of opinion that this submission has no substance whatever. 

25. The tribunal gave the appellant two substantive opportunities to address its doubts on the matters into which it was inquiring.  It did this, as I have pointed out, initially by asking the appellant to explain his own understanding of the critical issues.  At the end of the oral questioning the tribunal put to him squarely what was troubling it about the two critical matters upon which it said it was not satisfied it could accept his claims, namely his claimed religious beliefs and involvement in church activity in China and, secondly, his use of an allegedly false passport.  By doing that the tribunal gave the appellant a fair opportunity to address what became critical matters to it in concluding that he had not satisfied it as to his entitlement to a protection visa.

26. As Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ pointed out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 603 [48]:

    ‘Procedural fairness does not require the Tribunal to give an applicant [for review] a running commentary upon what it thinks about the evidence that is given.’

    Their Honours approved what Lord Diplock had earlier said in F Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 that the rules of natural justice did not require a decision-maker to disclose what he or she was minded to decide so that the parties could have a further opportunity of criticising the decision-maker’s mental processes before he or she reached a final decision.

27. Having reviewed the evidence and given consideration to the appellant’s submissions I am satisfied that the tribunal properly discharged its function under s 425 and that this ground of appeal fails.

28. Last, the appellant argued that the tribunal was biased and that it should not have divided the unofficial church into the categories of leader and member or considered that only leaders could be subjected to adverse attention by the Chinese authorities.  Again, there is nothing in the tribunal’s reasons and findings which suggests that the tribunal considered the appellant’s claim, and the evidence he gave orally to support it, on this basis.  It had decided adversely to him because it was not satisfied by his evidence.  That was a proper matter for the exercise of the tribunal’s jurisdiction which was confided to it by the Act.  I am of opinion that there is nothing else in this ground that could possibly be supported on the material before me.  Accordingly, it fails. 

29. The appeal must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        9 May 2007

Appellant:	In person
Counsel for the Respondent:	GR Kennett
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 May 2007
Date of Judgment:	3 May 2007