SZIVI v Minister for Immigration and Citizenship
[2007] FCA 606
•1 May 2007
FEDERAL COURT OF AUSTRALIA
SZIVI v Minister for Immigration and Citizenship [2007] FCA 606
SZIVI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2553 OF 2006STONE J
1 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2553 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIVI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE OF ORDER:
1 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The “Minister for Immigration and Citizenship” to 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 costs of the First Respondent in the sum of $1800.
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 2553 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIVI
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE:
1 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant, a citizen of the People’s Republic of China arrived in Australia on 17 September 2005 and, shortly afterwards, lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs which was received on 1 November 2005. Her application was refused in turn by a delegate of the first respondent and by the Tribunal. The appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. Her application was dismissed by the Federal Magistrate on 19 December 2006.
Protection visa application
In her protection visa application the appellant claimed that in February 2005 her son came to Australia to study. Her husband was away most of the time working and she was very lonely. In March 2005 a neighbour who knew she was lonely invited her to a religious meeting. She then began to attend these meetings regularly and thus became involved with an underground Christian church. She described the composition of the group, the regularity of meetings and the assistance provided to her by group members. She said that they were mainly studying the Bible or other ‘religious propaganda materials’. She claimed that in June 2005 policemen came to her home with a summons and took her to the Public Security Bureau in Fuqing City. There she was interrogated but then allowed to leave after paying a fine and being warned not to be involved in the illegal gatherings again. Other members of her group were also detained at this time and were held for longer periods. After this, the group had to change its meeting place and the appellant offered her home for this purpose. One room in her house was set aside for the organisation and distribution of religious propaganda.
The appellant claimed that she was granted a visa to come to Australia in August 2005 and, having obtained her husband’s agreement, she left a key to her house with the religious group so they could continue using it as a secret gathering place. She also agreed to send religious propaganda from overseas. After the appellant arrived in Australia, she sent propaganda materials to group members. Later she was told by a friend of her husband that group members, including her husband, had been arrested by the PSB. Her husband was released. He was told that the PSB regarded the appellant as a key member of the organisation because she sent propaganda back to China and that she must be ‘severely punished’ upon her return.
Proceedings in the Tribunal
At a hearing before the Tribunal the appellant was questioned on aspects of her claims. After the hearing the Tribunal wrote to the appellant, through her migration agent. In a letter dated 21 February 2006, the Tribunal raised concerns about the appellant’s credibility and, pursuant to s 424A of the Migration Act 1958 (Cth), inviting her to comment. The Tribunal referred to inconsistencies between the statement provided to the Department and the oral evidence provided at hearing.
In a letter received by the Tribunal on 7 March 2006, the appellant replied that she was an uneducated person and the interpreter arranged by the Tribunal was not able to speak her first language. The appellant did not claim that she could not understand the interpreter but only that this resulted in her having difficulty articulating her claims. The appellant went on to repeat the claims provided in her written submission to the Department. She explained that any contradiction between these claims and her evidence at the hearing was because of the interpreter’s incorrect translation.
The Tribunal was generally not satisfied that the appellant was a credible witness and made the following findings:
(1)the appellant’s claim to be a committed Christian was not credible as she was unable to provide any meaningful information about her beliefs and knowledge;
(2)the appellant’s difficulties at the hearing arose from her ignorance of Christianity and the Bible and were not problems of interpretation;
(3)the appellant did not have a genuine interest in Christianity but had fabricated her claims to enhance her protection visa application;
(4)the evidence provided at the hearing did not support the appellant’s claim that she and her husband had not separated permanently in 1986 or that he was arrested in October 2005;
(5)the appellant attended church in Australia to enhance her protection visa application; and
(6)on the basis of the independent country information available to the Tribunal, if the appellant developed an interest in Christianity in the reasonably foreseeable future she would have the opportunity to express her religious beliefs in China without attracting adverse interest from the authorities.
Judicial review in the Federal Magistrates Court
The appellant sought judicial review of the decision of the Tribunal in the Federal Magistrates Court. Briefly summarised, her grounds of review were:
(a)The Tribunal failed to comply with s 425 of the Act; in particular the difficulty the appellant had in understanding the interpreter meant that she was not given a fair chance to present evidence and arguments.
(b)The Tribunal failed to comply with s 424A of the Act, in particular by not presenting the appellant with independent country information or the ‘negative views’ that the Tribunal member formed of the appellant’s submissions.
(c)The Tribunal failed to consider evidence fairly and properly.
The Federal Magistrate rejected all these claims. In relation to the alleged breach of s 425, his Honour pointed out that the alleged difficulty with the interpreter had been raised with the Tribunal. The Tribunal had rejected this allegation, finding instead that any difficulties flowed from the appellant’s ignorance of the Bible and of Christianity.
In relation to the alleged breach of s 424A, the Federal Magistrate noted that independent country information did not come within the scope of the section by virtue of s 424A(3)(a). His Honour also stated that the Tribunal was not obliged to put its subjective thought processes to the appellant and, in any case, the Tribunal did write to the appellant pursuant to s 424A expressing doubts about her claims.
The Federal Magistrate rejected the third ground as an invitation to engage in an impermissible review of the Tribunal’s findings on the merits.
Notice of Appeal
In her notice of appeal filed in this Court on 29 December 2006, the appellant claimed that the Federal Magistrate erred in law and that his Honour was ‘wrong in finding that the Refugee Review Tribunal acted properly in its findings’. No particulars of these grounds were given. In written submissions filed on 17 April 2007, and in her oral submissions at the hearing of this appeal, the appellant made the same complaints as she had made before the Federal Magistrate.
In relation to the Tribunal’s alleged non-compliance with s 424A she submitted that the Federal Magistrate erred in not accepting this submission. It is clear that the appellant is really taking issue with the Tribunal’s findings on the facts. His Honour was right to reject this submission for the reasons he gave.
The Federal Magistrate also dealt with a submission that the Tribunal failed to consider the appellant’s evidence ‘fairly and properly’. His Honour was correct to reject this invitation to engage in merits review. It is not within the jurisdiction of the Federal Magistrates Court or of this Court to do so.
Finally, the appellant also renewed her complaint that the Tribunal had not complied with s 425 of the Act as a result of her alleged difficulties with the interpreter. The Federal Magistrate rejected this submission giving reasons with which I agree.
After reviewing all of the appellant’s submissions, I have not found any error in the Federal Magistrate’s decision in this matter. His Honour held that the Tribunal did not make any jurisdictional error and therefore dismissed the appellant’s application for judicial review. I must similarly dismiss this appeal and order that the appellant pay the first respondent’s costs.
The first respondent has sought an order that the costs be fixed in the amount of $1,800. The costs incurred by the first respondent include reviewing the relevant documents, the preparation of appeal books, reviewing the appellant’s submissions, preparing written submissions and attendance at the hearing. I am satisfied the costs sought are reasonable and see no reason why further expense should be incurred in taxing those costs. I will therefore order that the costs of the first respondent be fixed in the amount of $1,800.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 8 May 2007
The appellant appeared in person assisted by an interpreter. Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 May 2007 Date of Judgment: 1 May 2007
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