SZIVT v Minister for Immigration and Multicultural Affairs

[2007] FCA 235

FEDERAL COURT OF AUSTRALIA

SZIVT v Minister for Immigration & Multicultural Affairs [2007] FCA 235

SZIVT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2038 OF 2006

EDMONDS J
19 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2038 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVT
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	19 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 2038 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVT
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	19 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of the Federal Magistrates Court (Federal Magistrate Scarlett) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of the delegate of the first respondent (‘the Minister’) to refuse to grant a protection visa to the appellant. 

2. By way of background, the appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 5 December 2005 and lodged an application with the Department of Immigration and Multicultural Affairs on 12 December 2005.  The appellant claims to have a well-founded fear of persecution because of his involvement with the Shouters, an underground church banned by the authorities in the People’s Republic of China.  The appellant claims that he was a practising member of the Shouters for a period of four years prior to his departure from China.  He claims that as well as practicing religion he promoted it conducting underground readings, assisting people to read the Bible, praying and singing.  The appellant claims to have been detained by police for two days in 2003 and to have relocated to Shanghai from Beijing, hiding himself under a false identity.  The appellant claims he developed a branch of the Shouters in Shanghai and continued to promote the church.  As a result, the appellant claims police began to search for him and he had to come to Australia for protection. 

3. The appellant was invited to attend a hearing at the Tribunal on 21 March 2006.  The appellant attended and gave evidence with the assistance of a Mandarin interpreter.  The Tribunal found that the appellant was not credible in relation to the material aspects of his claims, consequently determining that his claims would not be accepted, in particular, as the evidence of the appellant was implausible, contradictory and at times vague.  This led the Tribunal to reject his claims and to affirm the delegate’s decision not to grant the appellant a protection visa.

4. The Tribunal made a particular reference to the appellant’s inability to recall his baptism date, inconsistencies in details regarding his flight to Shanghai, his lack of knowledge of the Bible and the Shouters and the implausibility of his claim that he was not interrogated during his claimed detention.  In summary, the Tribunal found:

   ‘Overall, I am not satisfied that the applicant was a member of the Shouters underground church prior to leaving China or that he would be involved in Shouters underground church gatherings should he return to China.  Consequently, I am not satisfied that the applicant was arrested, detained, mistreated in June 2003 or that the authorities presently have an adverse interest in him because of his religious beliefs.  I am not satisfied the applicant fears harm on his return to China for religious reasons.  Accordingly the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason on his return to China.’

5. On 16 May 2006, the appellant filed an application for judicial review of the decision of the Tribunal.  Before the Federal Magistrate, the appellant relied on the following grounds in an amended application dated 26 July 2006:

   1.Ground one alleges that the Tribunal failed to carry out its statutory duty by failing to comply with s 424A of the Migration Act1958 (Cth) (‘the Act’).

   2.Ground two alleges the Tribunal was biased against the appellant and could not consider his application according to s 91R of the Act.

   3.Ground three alleges that the Tribunal relied upon irrelevant material.  The applicant claimed that the country information relied upon by the Tribunal was out of date and was based on hearsay.

6. The Federal Magistrate, in considering the Tribunal’s decision in the light of the claims made by the appellant, found that there was no breach of s 424A as the findings made by the Tribunal were based on the evidence of the appellant, which is excepted by subs 424A(3)(b). As to the claim that the Tribunal based its finding on the information in the appellant’s protection visa application, his Honour found that this claim was clearly wrong. Moreover, his Honour found that the Tribunal’s reliance on the independent country information was not specifically about the appellant and accordingly, was excepted from the obligations in subs 424A(1) by the operation of 424A(3)(a) of the Act.

7. As to the second ground of the appellant’s amended application, his Honour found that it also failed as no evidence of bias on the part of the Tribunal was provided and no inference of bias can be drawn from the mere fact of adverse findings.  The third ground of the application failed according to his Honour because the independent country information relied upon by the Tribunal was clearly relevant to the claims of the appellant.  His Honour observed that it would be difficult to comprehend why the appellant was complaining about the use of independent country information as it supported the claims that the Shouters were persecuted in China.

8. Turning to the appeal to this Court, the notice of appeal raises the following unparticularised grounds. 

   1.The Tribunal failed to notify the appellant of the particulars of the information that was the reason, or part of the reason, for affirming the decision as required by s 424A of the Act.

   2.The Tribunal’s satisfaction that the appellant was not a genuine refugee was based upon reasoning which did not have a logical or rational foundation. 

   3.The Tribunal was biased and could not consider the appellant’s application according to s 91R of the Act.

   4.The Federal Magistrates Court failed to ‘find out’ the errors made by the Tribunal. 

9. As to the first ground, that is, breach of s 424A of the Act, this was rejected by his Honour below for the reasons set out in [27] – [32] of his reasons, correctly, in my view.

10. As to the second ground – the Tribunal’s decision was not based upon rational or logical grounds – this does not appear to have been agitated below but, in any event, logicality does not, of itself, constitute jurisdictional error.  The Minister submits that, in any event, the Tribunal’s reasons for disbelieving the appellant are both rational and logical, and I agree. 

11. The third ground of appeal – bias – was rejected by his Honour below in his reasons in [33] – [36].  I agree with his Honour that there is no evidence at all of bias on the part of the Tribunal and certainly no inference of bias is to be drawn from the mere fact of adverse findings of the Tribunal.

12. The fourth ground of appeal – that his Honour below failed to ‘find out’ the errors made by the Tribunal – appears to be an umbrella ground encompassing the anterior grounds and, in consequence of my earlier conclusions, it must also fail.  I should record that the appellant filed no written submissions in support of his appeal and declined to make any oral submissions on the hearing of the appeal other than the observation that what he would say had already been said. 

13. The appeal must be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        1 March 2007

Solicitor for the Appellant	The appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	19 February 2007
Date of Judgment:	19 February 2007