SZIDQ v Minister for Immigration and Citizenship

[2007] FCA 1753

FEDERAL COURT OF AUSTRALIA

SZIDQ v Minister for Immigration and Citizenship [2007] FCA 1753

SZIDQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1263 OF 2007

SUNDBERG J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1263 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIDQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	16 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as the second respondent.

2.The appeal be dismissed.

3.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 1263 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIDQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE:	16 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a national of the People’s Republic of China, arrived in Australia on 18 December 2003.  On 14 January 2004 she applied for a protection visa. A delegate of the first respondent refused the application and that decision was affirmed by the Refugee Review Tribunal (‘the Tribunal’). On 20 September 2005 a Federal Magistrate quashed the Tribunal’s decision. The Tribunal, newly constituted, affirmed the delegate’s decision. An appeal to the Federal Magistrates Court was dismissed: SZIDQ v Minister for Immigration [2007] FMCA 971. The present appeal is from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976, the appeal is heard by a single judge.

2. The essence of the appellant’s claim before the Tribunal was that she had well-founded fear of persecution for her membership of the Shouters underground church. She claimed to have been demoted at work and to have come to the adverse attention of the Chinese authorities for her religious beliefs and activities. The appellant gave evidence before the second Tribunal that she attended church in Australia.

3. The Tribunal found the appellant travelled to Australia on a false passport and that she gave inconsistent evidence as to her departure from China. The Tribunal consequently found she was not a credible witness. On the basis of the appellant’s lack of knowledge of the Shouters church and its finding she was not credible, the Tribunal found she was not a member of the Shouters church in China. The Tribunal was not satisfied the appellant’s witnesses’ evidence was able to support her claims. The Tribunal accepted that the appellant attended church in Australia, but found she had done so for the sole purpose of creating a sur place claim. The Tribunal was not satisfied the appellant faced a real chance of persecution should she return to China.

4. Before the Federal Magistrate the appellant contended that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’), that it was biased and there was no evidence to support its findings. The Federal Magistrate dismissed the review application on the basis that there was no evidence of bias, that the assessment of credibility was for the Tribunal and that there was no breach of s 424A.

5. The notice of appeal contains two grounds. First, that the Tribunal was biased and made the decision “on assumption”. Second, that the Tribunal did not consider the appellant’s response to the invitation to comment on information and thus failed in its duty under s 424A.

6. The first ground in the notice of appeal appears to contain two separate grounds: first that the Tribunal was biased, and second that the decision was based on assumption and not evidence. However, it may be that what I have called the second is but an identification of the bias. Although the appellant thus attacks the Tribunal’s decision, I will treat her as asserting that the Magistrate erred in not sustaining her claims.

7. The Tribunal did not accept key aspects of the appellant’s case. It noted inconsistencies between the travel claims in her visa application and those she made later. In the former she said she had travelled to Australia on her own passport, but in response to s 424A questions she said she used a false passport, because she would otherwise have been unable to travel to Australia. She said she had not disclosed her true identity to the Department because she worried about her safety as well as the passport holder’s safety. After finding that the appellant travelled to Australia on a false passport, the Tribunal went on at page 12:

   The Tribunal also finds that the applicant’s written claims in the Application for a Protection visa about her travel to Australia on this passport are inconsistent with her later claims in this regard. Whilst the Tribunal accepts that applicants sometimes use illegal means to flee their country, such as a photo‑substituted passport, the Tribunal does not accept that the applicant continued with the deception in Australia because she feared for her safety. The Tribunal can not accept this reasoning as Australia is a country to which she fled in order to receive protection, thus trusting implicitly in its ability to protect her.

8. As to the appellant’s other reason for continuing the deception when in Australia, namely that she feared for the passport holder’s safety, the Tribunal said at page 12:

   at the hearing the applicant stated that the rightful passport holder was not her friend. She stated at the hearing that she actually feared for another person’s safety, the friend who provided the passport. The Tribunal asked whether the applicant feared for the rightful passport holder’s safety or her friend’s safety. The applicant then stated that her friend might know the passport holder, so she was concerned about both the friend’s safety and the rightful passport holder’s safety. The Tribunal does not accept this explanation and finds it to be both internally inconsistent at the hearing and also inconsistent with the written answer to the s 424A response.

9. The Tribunal did not accept the appellant’s explanation of the inconsistency, namely that there may have been a translation error in the preparation of the s 424A response as the English of the friend who prepared it for her was not good. It said at page 13:

   the s 424A response is clear and precise in stating that the applicant was concerned about the passport holder’s safety. Further, the s 424A response … is written in a style that reflects the authorship of a person who has a good command of English.

   As a result of the above findings, the Tribunal concluded that the appellant was not a credible witness.

10. The Tribunal went on to detail further inconsistencies in the appellant’s evidence. At the hearing she said she had travelled to Australia in December 2003 and had never been here before. Earlier she had told a differently constituted Tribunal she had been to Australia in October 2003. She told the later Tribunal that she had not told the truth to the first Tribunal because she was afraid to do so, as the passport on which she was travelling was her friend’s. The Tribunal rejected this claim for the same reasons it had rejected the claim at [8]. It concluded at page 13:

    The Tribunal put the second s 424A issue to the applicant at the hearing. She stated that at the hearing before the firstly constituted Tribunal she was fearful of speaking out the real matters about herself as she did not know Australia very well. For the same reasons as above relating to having implicit trust in Australia’s power to protect her the Tribunal does not accept this. The Tribunal finds that the appellant had not travelled to Australia prior to December 2003. The Tribunal also finds that the applicant had previously said that she had travelled to Australia in October 2003, before amending that response during the first Tribunal hearing. The Tribunal finds that the applicant’s answers as to questions about her travel to Australia prior to December 2003, have been inconsistent. The above findings support the Tribunal’s previous finding that the applicant is not a credible witness.

11. The Tribunal referred to other deficiencies and inconsistencies in her evidence relating to baptism dates (1990 and then 2002) and how long she had been a member of the Shouters Church (over a year and then three years). It noted that her answers on general theology were patchy. She did not have a clear knowledge of the Shouters Church. The Tribunal did not accept the appellant’s claim that she attends the Padstowe Chinese Church. On the basis of her “lack of credibility and looseness with the truth”, it found that this claim had the sole purpose of creating a sur place claim.

12. As a result of the Tribunal’s findings, it was not satisfied that the appellant faced a real chance of persecution should she return to China now or in the foreseeable future.

13. Before the Magistrate the appellant did not challenge the credibility findings. Having regard to the authorities she could not have done so. See W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64] per Tamberlin and Nicholson JJ. The Tribunal provided a rational explanation for its credibility finding. It is not susceptible to attack. Rather she alleged bias on the Tribunal’s part, a lack of evidence for its determination, and a failure to comply with s 424A. The Magistrate dismissed all these contentions. All were repeated though in slightly different language on the appeal.

14. The bias claim has no substance. There is nothing in the Tribunal’s reasons that indicates that it had a closed mind, not amenable to persuasion otherwise. The fact that it did not believe the appellant does not establish any actual prejudice or reasonable apprehension that it would not bring an open mind to the task in hand. Before the Magistrate, and before me, the appellant provided no particulars of the alleged bias. His Honour was correct to reject the bias ground.

15. The ground that the Tribunal’s decision was based on assumption and not on evidence appears to be the same as the ground pursued before the Magistrate, though the word “assumption” does not appear to have been used. Once the essential parts of the appellant’s story were put aside on the basis of her lack of credibility, her case had to fail. I agree with the following passage from the Magistrate’s reasons at [8]:

    It is not necessary for a Tribunal to have evidence to come to the view that it does not accept the credibility of the story put by an applicant.  This is something that rarely comes out of evidence but comes about instead as a result of the responses to questions put by the Tribunal to the applicant and an assessment of those responses, and the applicant’s statements.

16. The remaining ground is failure to comply with s 424A. Pursuant to that section the Tribunal asked the appellant to provide certain information. She complied with the request in part, though she did not respond to the request for an explanation as to the inconsistency between her statements as to whether she had been to Australia before her recent entry. The complaint is that having received her response to the notice, the Tribunal “did not really consider the explanation” and thus failed to comply with s 424A.

17. Section 424A requires the Tribunal to give to an applicant

    particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review.

    This the Tribunal did. A complaint that the Tribunal did not accept an applicant’s response to the invitation to comment on the information provided by the Tribunal does not establish a failure to comply with s 424A.

18. The Magistrate thought that by this ground the appellant may have been seeking the provision of the Tribunal’s reasoning process. If so, as his Honour pointed out, she was not entitled to such material. It is not “information” for the purposes of s 424A: SZBYR v Minister for Immigration [2007] HCA 26 at [18]. That is not what the appellant was contending before me, though she may have done that before the Magistrate.

19. No error has been shown in the Magistrate’s dismissal of the application for review, and the appeal must be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:        16 November 2007

The appellant appeared in person.
Counsel for the Respondent:	J Smith
Solicitors for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 November 2007
Date of Judgment:	16 November 2007