SZHVE v Minister for Immigration and Citizenship
[2008] FCA 661
•15 May 2008
FEDERAL COURT OF AUSTRALIA
SZHVE v Minister for Immigration and Citizenship [2008] FCA 661
SZHVE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 305 OF 2008
BESANKO J
15 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 305 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHVE
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
15 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal fixed in the sum of $1900.
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 305 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHVE
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE:
15 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from orders made by a Federal Magistrate. On 14 February 2008 the Federal Magistrate dismissed an application for judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”).
The appellant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 27 April 2005 and he made an application for a protection visa to the then Department of Immigration and Multicultural and Indigenous Affairs on or about 9 May 2005. By letter dated 30 June 2005 a delegate of the Minister advised the appellant that he had refused his application for a protection visa. The appellant lodged an application for review by the Tribunal on or about 29 July 2005. By decision signed on 24 October 2005 and handed down on 15 November 2005, the Tribunal affirmed the decision of the delegate. On 14 December 2005 the appellant lodged an application for judicial review with the Federal Magistrates Court. A Federal Magistrate dismissed the application for judicial review on 20 December 2006. There was then an appeal to this Court. On 2 May 2007 a Judge of this Court allowed the appeal and set aside the orders made by the Federal Magistrates Court. The Tribunal’s decision was quashed and it was directed to hear and determine the application for review in accordance with law (SZHVE v Minister for Immigration and Citizenship [2007] FCA 685). The Tribunal, constituted of a different member, reheard the application for review on 25 July 2007. On the following day the Tribunal sent a letter to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”) and information was provided by the applicant’s agent in response to that letter. By decision signed on 15 August 2007 the Tribunal affirmed the decision of the delegate.
The appellant lodged an application for judicial review with the Federal Magistrates Court on 24 September 2007. The Federal Magistrate heard the application on 14 February 2008 and he dismissed it on the same day.
The Federal Magistrate approached the application by dividing the allegations therein into the following four grounds:
“a)Ground 1 – the second Tribunal failed to consider the applicant’s evidence about his religious practices in Australia.
b)Ground 2 – the second Tribunal incorrectly applied s 91R(3) of the Migration Act.
c)Ground 3 – the second Tribunal failed to invite the applicant to comment on information.
d)Ground 4 – the second Tribunal failed to give the applicant an opportunity to establish the purpose of his activities in Australia.”
Before identifying the Federal Magistrate’s approach to each of these grounds, it is convenient to identify the important aspects of the reasoning of the Tribunal member.
The Tribunal member found that the appellant was not a credible and truthful witness. He did so having regard to “the significant inconsistencies between his written claims and the oral evidence he provided at the first and second Tribunal hearings, as well as other reasons detailed below”. He then identified eight topics in respect of which he said the appellant’s evidence was unsatisfactory. He referred to the appellant’s involvement in Christian activities since he has been in Australia. The Tribunal member did so because that conduct may have been relevant to the appellant’s claims. In that context, the provisions of s 91R(3) are relevant. They are in the following terms:
“(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
As to this topic, the Tribunal member said:
“However, having regard to the applicant’s overall credibility or lack thereof, the Tribunal is of the view that his conduct in Australia has been designed to assist him in his endeavour to remain in this country by strengthening his case for a protection visa. Section 91R(3) provides that any conduct engaged in by an applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision-maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or claim to be a refugee within the meaning of the Convention. Given the fundamental lack of credibility within the applicant’s evidence, the Tribunal is not satisfied that his conduct in Australia has been otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention.
Accordingly, the Tribunal must disregard the conduct engaged in by the applicant in Australia pursuant to s 91R(3) of the Act.”
I turn now to the reasons of the Federal Magistrate.
The Federal Magistrate said that it was clear that the Tribunal had considered the appellant’s religious activities in Australia and that ground 1 had not been made out. The Federal Magistrate said that the Tribunal had applied correctly s 91R(3) of the Act and that ground 2 had not been made out. He noted that the Tribunal’s decision rested firmly on the credibility findings made by the Tribunal and that credibility was a “factual matter which is a matter for consideration by the Tribunal”.
The Federal Magistrate said that the Tribunal had invited the appellant to comment on information and he referred to the letter dated 26 July 2007 from the Tribunal to the appellant pursuant to s 424A of the Act. The third ground was not made out. The Federal Magistrate said that the Tribunal had given the appellant an opportunity to establish the purpose of his activities in Australia. He referred to the fact that from as early as June 2007 the Tribunal had written to the appellant inviting him to a hearing. The appellant had attended the hearing and the Tribunal had asked him questions about his evidence. The Federal Magistrate said that the appellant was given the opportunity at the hearing to establish the purpose of his religious activities and the fourth ground of appeal was not made out. The Federal Magistrate also said that if by certain assertions the appellant was in fact submitting that the Tribunal’s conclusions in relation to s 91R(3) should have been put to him for his comment that submission must fail. The Tribunal’s conclusions were based on “the fundamental lack of credibility of the Applicant’s evidence” and there was no requirement on the Tribunal to put its conclusions to the appellant for his comments.
In his notice of appeal under the heading of “Grounds”, the appellant asserts:
“The applicant claims that the RRT decision is affected by Jurisdictional error as it incorrectly applied s 91R(3) of the Act. The applicant submitted to the Tribunal evidence showing his religious practice in Australia. The Tribunal gave no consideration to such evidence as it was satisfied for the purposes of s 91R(3) of the Act that his conduct in meeting regularly with Church in Australia since June 2006 has been engaged in otherwise than for the purpose of strengthening his claim to be a refugee. The applicant claims that his purpose in engaging in church conduct is not for strengthening his refugee claims. The Tribunal failed to invite the applicant to comment on this information and failed to give the applicant an opportunity to establish his purpose of church activities”.
In essence, these particulars cover most, if not all, of the grounds of the application heard and determined by the Federal Magistrate. No particulars of each of the assertions are given, nor are there any particulars of alleged errors made by the Federal Magistrate. The appellant did not identify any errors in the reasons of the Federal Magistrate during the course of his oral submissions. I am satisfied that there are no errors and that the decision of the Federal Magistrate is correct.
In those circumstances, the appeal must be dismissed. The first respondent asked for an order for costs against the appellant fixed in the sum of $1900. I am satisfied from the evidence placed before me that that is an appropriate sum. I will make an order in those terms.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 15 May 2008
The Appellant appeared in person. Counsel for the First Respondent: Ms V McWilliam Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 13 May 2008 Date of Judgment: 15 May 2008
0
1
0