SZHWW v Minister for Immigration and Citizenship
[2008] FCA 666
•16 May 2008
FEDERAL COURT OF AUSTRALIA
SZHWW v Minister for Immigration & Citizenship [2008] FCA 666
Migration Act1958 (Cth)
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425
NABE v The Ministerfor Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1SZHWW v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1659 OF 2007
REEVES J
16 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1659 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHWW
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
16 MAY 2008
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 1659 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHWW
AppellantAND:
MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
16 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from a decision of Federal Magistrate Smith dated 30 July 2007. His Honour reviewed a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 21 November 2006. The appellant alleges Federal Magistrate Smith erred by failing to rule that the Tribunal had committed a jurisdictional error by misconstruing or misunderstanding the case he put to it and therefore basing its conclusions on that misconstruction or misunderstanding, rather than on the case as he put it.
Having considered the decision of Federal Magistrate Smith and the decision of the Tribunal on review, I have concluded that Federal Magistrate Smith did not fall into error as alleged and the appeal will therefore be dismissed. My reasons are set out below.
BACKGROUND – SUMMARY OF FACTS
The appellant is a citizen of the People’s Republic of China (‘China’). He arrived in Australia on 29 November 2004. On 24 December 2004, he applied for a protection (class XA) visa. In his application he claimed, among other things, that before he left China he had become disenchanted with the government of the Communist Party and had converted to Christianity. After his conversion he claims to have organised Bible study groups and ‘spread the word of the Bible’ in China which brought him to the attention of the Chinese Authorities. The appellant claimed to hold a fear of persecution arising from these activities.
A delegate of the first respondent rejected the appellant’s visa application on 12 May 2005. The appellant then sought to have the Tribunal review the delegate’s decision however the Tribunal affirmed the delegate’s decision on 4 November 2005. The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. By a consent order dated 15 August 2006, Federal Magistrate Emmett quashed the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration, on the basis that the Tribunal had failed to observe the provisions of s 424A(1) of the Migration Act1958 (Cth) (‘the Act’).
On remittal, the Tribunal arranged and conducted a hearing, which the appellant attended, on 9 November 2006. During the hearing the Tribunal questioned the appellant at length regarding his involvement with the ‘Shouters’ Christian sect (‘the Shouters’), as well as other matters. In its subsequent decision the Tribunal (again) affirmed the decision of the delegate. The appellant then sought judicial review of that decision in the Federal Magistrates Court which resulted in the decision of Federal Magistrate Smith dated 30 July 2007 which, in turn, has resulted in this appeal.
THE TRIBUNAL’S DECISION
In its decision of 21 November 2006, the Tribunal accepted that the appellant was a Chinese citizen but rejected the application for review because it found the appellant was not a credible witness in relation to the main aspects of his claims: including his involvement with the Shouters, whether in Australia or China; his involvement in Bible studies and proselytising activities in China; and associated questioning by the Chinese Authorities.
THE FEDERAL MAGISTRATES COURT DECISION
It appears that Federal Magistrate Smith delivered his decision ex tempore and later published his reasons for judgment as a revision of the transcript of that decision.
After setting out the limits of his jurisdiction to review the decision of the Tribunal, the background detail of the appellant’s history in China and the history of the appellant’s application for a protection visa, Federal Magistrate Smith considered the ‘findings and reasons’ of the Tribunal in some detail: see [2007] FMCA 1302 at [16] – [33] of the reasons.
Federal Magistrate Smith noted in particular that the Tribunal had concluded that the appellant’s knowledge of the Shouters was ‘random, inconsistent with independent evidence and in some respects very basic’, that the appellant’s knowledge of the Bible was ‘extremely random’ or ‘wanting’ and that the appellant’s claimed questioning by Chinese Authorities was ‘so far fetched as to be fanciful’. In relation to the appellant’s claimed history in China and his church attendance in Australia, Federal Magistrate Smith referred to the Tribunal’s conclusions regarding the inconsistencies in relation to the former and the lack of any confirmatory evidence in relation to the latter.
After noting these various conclusions of the Tribunal, Federal Magistrate Smith concluded (see [2007] FMCA 1302 at [23]) that it was open to the Tribunal to have made adverse credibility findings against the appellant and he was not persuaded that the Tribunal’s decision was affected by any jurisdictional error.
Notwithstanding this conclusion, Federal Magistrate Smith considered in turn, and rejected each of the four grounds of appeal before him.
In relation to the first ground – going to bias in the conduct of the hearing – Federal Magistrate Smith considered the transcript of the hearing before the Tribunal with regard to the High Court’s decision in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 at [27] – [32]. Based upon that assessment his Honour held that the Tribunal’s method of questioning the appellant was a proper method to test the truth of his claimed commitment to the Shouters, as well as his history and claims more generally. In particular the Federal Magistrate determined that there was nothing to indicate that the appellant had been ‘overborne or intimidated’ by the Tribunal’s questioning, nor subjected to ‘constant interruptions’, or unreasonable challenges to his truthfulness, or an aggressive or unfair questioning style. His Honour considered that the appellant had been given full opportunity to answer the Tribunal’s questions and although the Tribunal had used strong language to indicate its concerns about his credibility, that did not evidence any foreclosure on his case on the part of the Tribunal: see [2007] FMCA 1302 at [24] – [30].
The appellant gave a particular example of the difficulties that he had had with the interpreter, saying that the interpreter had misinterpreted the appellant’s reference to an ‘elder’ as a reference to a ‘priest’. Federal Magistrate Smith found that the appellant’s references to a ‘priest’ had been correctly interpreted and noted that in the two pages of the transcript preceding this alleged error the interpreter appeared to have correctly interpreted the appellant’s references to an ‘elder’: see [2007] FMCA 1302 at [31].
In relation to the second ground - an allegation of failure to comply with section 424A(1) of the Act – Federal Magistrate Smith held that this particular ground was devoid of particulars and, as he was unable to identify any such failure from his reading of the Tribunal’s reasons for decision, the ground must fail: see [2007] FMCA 1302 at [32].
In relation to the third ground – an allegation of failure to comply with section 425 of the Act – Federal Magistrate Smith noted that this appeared to be a repetition of the appellant’s complaints in ground one (above) and therefore dismissed it on the same basis.
Finally, in relation to the fourth ground – described by his Honour as ‘a series of generalised contentions of jurisdictional error’ – Federal Magistrate Smith determined that again, no particulars had been provided and he was not persuaded that the ground was made out after due consideration of the appellant’s submissions.
GROUNDS OF THE PRESENT APPEAL
In his written submissions filed in this Court on 20 March 2008, counsel for the appellant sought to add three specific grounds to his Notice of Appeal. In response, counsel for the first respondent noted that some parts of these grounds raised matters not raised before the Federal Magistrate but did not object to the appellant relying upon those new grounds on the appeal.
The grounds of appeal were as follows:
·Ground 1 - That the Tribunal breached section 425 of the Act.
·Ground 2 - That the Tribunal addressed a case which was not raised by the appellant.
·Ground 3 - That the Tribunal proceeded with apprehended bias.
THE CONTENTIONS
Mr Karp, who appeared for the appellant, submitted in essence that the first two grounds amounted to different articulations of the same error i.e. that the Tribunal had questioned the appellant and assessed his case on claims that did not form part of his application before it, particularly those claims going to his knowledge of the Shouters. In his written submissions, Mr Karp made specific reference to the Tribunal’s questioning on the following topics:
·the origins of the Shouters;
·in which country the founder of the Shouters lived and where in that country he lived;
·the names of some of the founder’s publications;
·what aspects of ‘mainstream’ religion the Shouters did not believe in; and
·the organisational structure of the Shouters.
The third ground which related to apprehended bias, relied upon the same factual circumstances as the first two grounds, being the method of questioning the appellant (described by the Federal Magistrate and outlined above).
Therefore, the fundamental complaint made by the appellant was that the Tribunal had misconstrued or misunderstood the case he was putting to it and that by questioning him on that misconstrued or misunderstood case, and then basing its conclusions about his credibility on the responses he offered, the Tribunal had committed jurisdictional error.
Mr Karp relied upon the decision of the Full Court of the Federal Court in NABE v The Ministerfor Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1 (‘NABE’) at [63] and in particular the following words:
‘It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.’
Mr Karp submitted that Federal Magistrate Smith fell into error by concluding that the appellant had had full opportunity to respond to the Tribunal’s questions, when the Federal Magistrate should have realised that the Tribunal’s questioning of the appellant itself constituted jurisdictional error in that it related to matters that were outside the claims the appellant was putting to the Tribunal.
Ms Sirtes, who appeared for the first respondent, submitted that the adverse findings on credibility made by the Tribunal were matters that were entirely within the Tribunal’s jurisdiction and not matters subject to judicial review.
As to the appellant’s claim that he had been questioned on matters that did not form part of his case, Ms Sirtes also relied upon NABE at [58], where the court restated the commonplace proposition that the Tribunal’s review process is inquisitorial and the Tribunal is not limited in its determination to the case articulated by the appellant, should evidence and material accepted by the Tribunal raise for consideration a matter that has not been articulated by the appellant.
Moreover, Ms Sirtes submitted that the appellant had in fact claimed to have detailed knowledge of the Shouters in a statement he had lodged with the Tribunal in November 2005. Therefore the Tribunal was entitled to question the appellant about all of the Shouters-related topics objected to by Mr Karp.
Ms Sirtes submitted that even if that submission were not accepted, the Tribunal had made quite separate adverse credibility findings affecting most aspects of the appellant’s claims including his knowledge of the Bible, his involvement in Christianity in China and in Australia, and his claim to have faced harm in China as a result of his activities as a Christian.
In this regard Ms Sirtes also drew support from NABE later in paragraph [63] where the court went on to say:
‘Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”.’
In reply, Mr Karp submitted that the Tribunal’s adverse conclusions on the appellant’s credibility were not separable but rather they were all inextricably based upon the questioning and answers in relation to his knowledge of the Shouters; knowledge he did not claim to have.
CONSIDERATION
The proposition that the Tribunal was wrong to question the appellant at length about the Shouters and then assess his credibility on the basis of answers he gave to that questioning, when he did not lay claim to any knowledge about the Shouters in his application, is fundamental to each of the appellant’s grounds of appeal.
Specifically he claims that the Tribunal’s questioning about the aspects of the Shouters listed by Mr Karp (and set out at paragraph [19] above) meant that the Tribunal fell into error.
If the appellant’s application were to be assessed solely on the basis of the statutory declaration (dated 22 December 2004) attached to his original application for a protection visa, his proposition would have some validity as there does not appear to be any mention of the Shouters in that document. This is so despite the fact that the statutory declaration includes details about his activities as a Christian in China including Bible study groups and proselytising.
However, as Ms Sirtes submitted, that statutory declaration was not the only material the appellant placed before the Tribunal. On 3 November 2005, the appellant’s agent, Ms Priscilla Yu, submitted a further statutory declaration by the appellant dated 2 November 2005. This further statutory declaration was submitted to the Tribunal after its first hearing on 31 October 2005 and well before the second hearing (on remittal) held on 6 November 2006.
The appellant begins the further statutory declaration by stating: ‘I am writing to you in relation to some of issues arising from the Tribunal’s hearing on 31 October 2005, and would like to provide further information for your kind consideration as follows:….’ . In the second paragraph, he states: ‘[r]egarding to my religious activities in China, I have to emphasise that I am belonged to the Local Recovery Church (also known as the “Shouters”), which is one of the Christian Church that has been regarded as an ‘illegal’ religious organization by the PRC authorities. The following independent evidence may assist the Tribunal to have a better understanding of the special church that I have belonged to.”
The appellant then sets out more than two pages of information about the Shouters, including the following:
1.The origins of the Local Church or the Shouters;
2.A brief description of the founder of the Local Church or the Shouters; Witness Lee, including his association with a well-known Chinese evangelist and preacher, Watchman Nee.
3.An account of Witness Lee having fled China after the Communist revolution and travelling to Taiwan and later to the United States where he settled in Southern California in 1962. His involvement in preaching and developing the modern day ‘Local Church Movement’. And his death in 1997 in Southern California.
4.Details about the size of the Local Church i.e. around several hundred thousand members worldwide.
5.The related ministries of the “Local Church” including the Living Stream Ministry, a publishing company focusing on the writings of Witness Lee and Watchman Nee; Bibles for America, an organisation promoting and distributing the movement’s unique Recovery Version translation of the Bible; and eManna, an email devotional featuring the teachings of Witness Lee.
6.Some of the unique and controversial elements of Witness Lee’s statements and the debate about whether or not the Shouters was a Christian movement.
7.Details of the efforts by the authorities in China to close down the Shouters including details of penalties applied to members and leaders of the organisation.
The appellant concludes his statutory declaration with a paragraph to the effect that :
‘I sincerely hope the Tribunal could kindly consider my claims not only relying on some of independent country information in relation to “Christians” but also some important information in relation to “Shouters”.’
It is patently clear from this statutory declaration that the appellant claimed to have been a member of the Local Recovery Church or Local Church, also known as the Shouters, and that he claimed to have a detailed knowledge of the Shouters, including almost every aspect upon which he claimed the Tribunal should not have questioned him. Moreover, in this statutory declaration, he clearly relies upon his membership of the Shouters and its status as an ‘illegal’ organisation in China in support of his claim for a protection visa.
Having received all this information in support of the appellant’s application, the Tribunal was obliged to consider it and entitled to question him about the detail of his knowledge, as it did.
It follows that the appellant has not made out the proposition that is fundamental to his appeal – that he did not lay claim to any knowledge about the Shouters in his application and therefore the Tribunal was wrong to question him about it.
It necessarily follows that Federal Magistrate was not in error in identifying no error on the part of the Tribunal. The appellant’s appeal must therefore be dismissed.
I will hear the parties on costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 16 May 2008
Counsel for the Appellant: Mr L Karp Counsel for the First Respondent: Ms S Sirtes
Date of Hearing: 27 March 2008 Date of Judgment: 16 May 2008
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