SZIIW v Minister for Immigration and Citizenship

[2007] FCA 657

FEDERAL COURT OF AUSTRALIA

SZIIW v Minister for Immigration and Citizenship [2007] FCA 657

SZIIW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 41 OF 2007

STONE J
2 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 41 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIIW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	2 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The Minister for Immigration and Citizenship be substituted for the Minister for Immigration and Multicultural Affairs as the first respondent to the appeal.

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 41 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIIW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	2 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a citizen of the People’s Republic of China, arrived in Australia on 21 July 2005 and lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs on 18 August 2005.  Her application was refused successively by a delegate of the first respondent and by the Refugee Review Tribunal.  Her application for judicial review in the Federal Magistrates Court was dismissed on 22 December 2006.  This is an appeal from that order.

   Protection visa application

2. The claims made by the appellant in her protection visa application may be summarised briefly.  She claims that she was baptised a Roman Catholic when very young, as her mother had been an active member of a Roman Catholic underground church in China.  She has participated regularly in church activities from April 1998.  Her involvement with the church extended to assisting one of the members with the distribution of propaganda and the organisation of meetings.  In May 2004 a meeting of church members was surrounded by the police, and the members were taken to the Public Security Bureau (PSB) premises where they were interrogated and subjected to physical mistreatment.  A secret contact in the PSB arranged for them to be released after paying a fine.  There was a similar incident in December 2004 and, from that time, the appellant was identified as a group leader.  She was detained for a month and forced to pay a fine to obtain her release.  In 2005 a new leader of the church was appointed and the appellant continued to provide assistance.  Once, when preparing for a clandestine baptism at a parishioner’s home, the police came but she managed to flee.  The appellant’s husband arranged for her to go into hiding and to obtain a passport in a different name.  It was with this passport that she left China.

   Proceedings in the Tribunal

3. On 7 December 2005 the appellant attended a hearing before the Tribunal.  She was assisted by a Mandarin-speaking interpreter and brought with her a priest from a local Catholic church who gave oral evidence to the Tribunal.  The priest attested to her claims and stated that he believed the appellant to be a ‘high profile’ member of the church who had had some ‘bad experiences’.

4. The Tribunal did not believe that the appellant provided a truthful account of her experiences or beliefs prior to her departure from China.  In particular, the Tribunal did not believe the appellant ever had any involvement with the Catholic faith while in China, nor that such involvement caused her to leave the country.  The Tribunal came to this conclusion for reasons that included the following:

   (1)the appellant was unable to provide anything more than a minimal explanation of her faith.  The description she gave of the Mass was consistent with her having observed services for a short time only;

   (2)the appellant’s scanty knowledge of Christianity was inconsistent with her claim to have attended church for an extensive period and to have been actively engaged in distributing religious material;

   (3)the appellant’s claimed loss of memory could not be accepted as a truthful explanation for her lack of knowledge of the tenets and practice of the Catholic faith, particularly as the loss of memory appeared only to affect those issues.  The Tribunal considered the claimed memory loss to be an invention to explain her lack of knowledge about a faith she claimed to practise regularly;

   (4)the claim that the authorities were interested in members of the appellant’s family who remain in China was inconsistent with other evidence.

5. The Tribunal took into account the priest’s assessment of the appellant but did not consider it to support the claimed past experiences or involvement with the Catholic faith in China.

6. The Tribunal found the evidence supported the conclusion that the appellant, on travelling to Australia, came to the view that claiming to follow Catholicism would lead to a favourable outcome for a protection visa application and therefore the appellant attempted to portray herself as such a person. Consistent with this finding, the Tribunal considered that the appellant had attended Mass and engaged in Bible study in Australia to support her claim rather than as a genuine expression of faith. Accordingly the Tribunal disregarded the conduct of the appellant in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’).

   Proceedings in the Federal Magistrate’s Court

7. The appellant sought judicial review of the decision of the Tribunal in the Federal Magistrates Court. In an amended application filed on 30 May 2006 the appellant made the following claims:

   1.The Tribunal misunderstood the claim and made a mistake in relation to an important finding of fact.  The particulars alleged to support this claim are:

   (a)a Mandarin-speaking interpreter was provided rather than an interpreter who could speak Fuqingese, the appellant’s first language;

   (b)the appellant sustained head injuries as a result of torture and was too nervous at the hearing to remember even basic knowledge;

   (c)the Tribunal could not deny that the appellant was a person who, because of her sufferings, is in fear of the Chinese authorities and felt apprehensive at the Tribunal hearing;

   (d)the priest would not have provided evidence for the appellant if she was not genuine;

   (e)the appellant was unable to explain the most basic information because of problems of interpretation and because of head injuries sustained during detention.

   2.The Tribunal failed to comply with its obligations under s 424A(1) of the Act.

   3.The Tribunal failed to comply with its obligations under s 425(1) of the Act as, for the reasons mentioned above, the appellant was unable to give oral evidence in support of the application and she could not present arguments relating to the issues arising in relation to the decision under review.

8. In relation to the first ground of appeal, the Federal Magistrate noted that in the Response to Hearing Invitation form provided to the Tribunal by the appellant a Mandarin-speaking interpreter was requested and that this is what was provided. A transcript of the hearing before the Tribunal was in evidence before his Honour. The appellant identified five instances of claimed misunderstanding however his Honour found that the claim was not substantiated and that the appellant had a reasonable understanding of the issues put to her at the Tribunal hearing and responded accordingly. The Federal Magistrate was satisfied that when the appellant raised with the Tribunal her inability to understand, the Tribunal rephrased questions to ensure her comprehension. His Honour found no breach of s 425 of the Act. The findings of fact were open to the Tribunal on the evidence before it. Similarly, the Federal Magistrate found that the Tribunal had not relied on any information covered by s 424A and there was no breach of that section.

9. In relation to the third ground of appeal in the amended application the Federal Magistrate held that this was really an allegation that the Tribunal did not assess the case fairly and carefully.  His Honour did not accept this claim and found that the appellant was treated fairly and there was no breach of natural justice.  His Honour held that his reading of the transcript, his consideration of the proceedings before the Tribunal and his review of the Tribunal’s decision indicated that the claims of the appellant were considered carefully.

   Notice of appeal

10. On 10 January 2007 the appellant filed a Notice of Appeal from his Honour’s judgment.  The grounds of appeal are the same as those put before his Honour.  The submissions made at the hearing of the appeal did not go beyond a claim for impermissible merits review.  There was nothing to suggest that his Honour made any error.  In my view, his Honour was correct for the reasons he gave, and accordingly the appeal must be dismissed with costs. 

11. In addition to dismissing the appeal and ordering that the appellant pay the first respondent’s costs of the appeal, following a change of name of the relevant department, I must also order that the Minister of Immigration and Citizenship be substituted for the Minister of Immigration and Multicultural Affairs as the first respondent. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:        4 May 2007

The appellant appeared in person, assisted by an interpreter.
Counsel for the First Respondent:	T Reilly
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	2 May 2007
Date of Judgment:	2 May 2007