SZIYS v Minister for Immigration and Citizenship
[2008] FCA 683
•16 May 2008
FEDERAL COURT OF AUSTRALIA
SZIYS v Minister for Immigration and Citizenship [2008] FCA 683
Migration Act 1958 (Cth) ss 91R(3), 424A
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZIYS v Minister for Immigration & Citizenship & Anor [2007] FMCA 2031SZIYS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2535 OF 2007
MCKERRACHER J
16 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2535 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIYS
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
16 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is ordered to pay the costs of the first respondent fixed at $3,310.
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 2535 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIYS
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
16 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from a judgment of a Federal Magistrate (Emmett FM) delivered on 7 December 2007 (SZIYS v Minister for Immigration & Citizenship & Anor [2007] FMCA 2031) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 31 May 2007. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.
BACKGROUND
The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 1 November 2004. On 19 October 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department). A delegate of the first respondent refused the application for a protection visa on 7 December 2005. The appellant sought review of the delegate’s decision and the Tribunal confirmed the delegate’s decision on 11 May 2006.
That decision was quashed by consent by the Federal Magistrate on 20 October 2006 and remitted to the Tribunal for reconsideration. It is the second decision of the Tribunal that is the subject of this appeal.
The appellant essentially claimed to fear persecution in China due to his Christian religion and his having left China illegally. The appellant claimed that he was baptised at age 22 and that he regularly attended a house church in his home village. According to the appellant, he was arrested by the Public Security Bureau (PSB) in January 2004, interrogated and forced to sign an undertaking not to practise Christianity. He recounted that he fled China using a people smuggler.
The appellant also claimed at the hearing before the second Tribunal that his wife had been forcibly sterilised due to her pregnancy breaching China’s one-child policy. The appellant indicated that he wished to have children in the future in violation of the policy.
THE TRIBUNAL DECISION
The appellant appeared at hearings before both Tribunals. At the hearing before the second Tribunal, the appellant requested the Tribunal take evidence from two witnesses. Only one appeared in person and the appellant requested the evidence from the other witness over the telephone.
The Tribunal did not obtain evidence from the witness over the telephone as the appellant, although providing a name and mobile telephone number, did not provide any other information as to the identity of the person.
In relation to the substantive claims, the Tribunal found the appellant was not a witness of truth and that his claims had been concocted in order to obtain a protection visa.
Due to his insufficient knowledge of its precepts and a failure to mention membership in his protection visa application the Tribunal did not accept that the appellant was a member or would be imputed to be a member of the Christian ‘Shouters’ sect. For this reason, it did not accept that the appellant had come to the adverse attention of authorities by virtue of his identification with the Shouters, or that he faced a threat that this would occur in the future. The Tribunal also noted in this context that the appellant had failed to raise the issue of a summons allegedly brought against him by the PSB. The omission of such a significant matter ‘going to the core of his claim’ undercut the credibility of the contention.
The Tribunal did not accept the appellant’s claim based on his wife’s forced sterilisation as he had again failed to raise this issue before the first Tribunal or the Department. Nor did the Tribunal accept that the appellant would suffer Convention-related harm (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967) due to his manner of departure from China, his application for a protection visa, or due to his alleged indebtedness.
The Tribunal was not satisfied the appellant had a well-founded fear of persecution and affirmed the decision under review.
THE FEDERAL MAGISTRATE’S DECISION
Before the Federal Magistrate the appellant claimed in summary:
1.The Tribunal fell into jurisdictional error by finding that the appellant was not a member of the Shouter sect by failing to take into account the appellant’s practise of Christianity in Australia (Ground 1).
2.The Tribunal fell into jurisdictional error by finding that the appellant and his associate had created their evidence in order to obtain the visa sought (Ground 2).
In relation to the first ground, the Federal Magistrate held the Tribunal had considered the appellant’s religious practise when in Australia in line with s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’). Based on its view of the witness’ integrity, the Tribunal determined that the conduct was for the purpose of strengthening his claim and therefore ignored it when making its decision. Her Honour found that this finding was available to the Tribunal on the evidence before it and no jurisdictional error was occasioned.
In relation the second ground, her Honour found that it was open to the Tribunal to find that the evidence of the appellant and his associate was inconsistent. Having informed the appellant of this pursuant s 424A of the Act, it was then open to the Tribunal to find they had concocted their evidence. No jurisdictional error was found to arise on this ground either and the application was accordingly dismissed.
GROUNDS OF APPEAL
The notice of appeal again raises the two grounds argued before the Federal Magistrate.
At the hearing of the appeal, the appellant in oral submissions stressed that the Tribunal had made errors in concluding that he had given a false name and false date of birth. He also stressed that if he was forced to return to China he had no home to go to as his home had burned down. In support of this he produced several colour photographs showing a building which appeared to have been destroyed by fire. I made it clear that I could not accept those photographs into evidence as it was not within the Court’s jurisdiction or power on this appeal as to alleged jurisdictional error, to receive fresh evidence of that nature.
Counsel for the first respondent, Mr Cleary observed, correctly in my view, that the Tribunal determined the merits of the appellant’s claim on the evidence before it regardless of the conclusion reached as to the appellant’s true identity. My attention was drawn to the following passage from the decision of the Tribunal:
The applicant has informed the Tribunal that he travelled to Australia with a false passport. The Tribunal (T2) put to the applicant that his ID card has been examined and that an expert formed the view it was counterfeit. The applicant asserts to the Tribunal that he is the person named in the ID card 100%. The Tribunal sent to the applicant a letter pursuant to s. 424A of the Act informing him that the documents examination division of the Department has concluded his ID card was counterfeit. The applicant does not agree his ID card is counterfeit.
In the absence of a passport, a document legally recognised as proof of both a person’s identify and citizenship, secondary evidence such as birth certificates or household registration (Hukou) or identity cards can establish identity. Despite being put on notice, by both the Department and T1, that he had not produced any other documents in relation to his identity, the applicant has produced no further information.
Whether or not the applicant is who he says he is, an even were I to accept his assertion that his ID card is 100% genuine, I am not satisfied the applicant is a witness of truth. (emphasis added)
This is a clear case of the Tribunal logically drawing on material which was before it the conclusion that the appellant was not a witness of truth and that he created his claims in order to obtain the visa sought. The Tribunal articulated in detail the bases upon which it pointed to inconsistencies in the appellant’s account. It examined the evidence closely and carefully and, in my view, its decision has not been shown to be erroneous in any respect.
CONSIDERATION
Ground 1 – Failure to consider appellant’s practise of Christianity in Australia
The Tribunal did accept that the appellant had engaged in practising Christianity while he has been in Australia. It followed that it was necessary for the Tribunal by virtue of s 91R(3) of the Act to evaluate the reason given by the appellant as to why he engaged in that conduct. So that it could assess the appellant’s refugee claim, s 91R(3) of the Act required the Tribunal to disregard conduct engaged in by him whilst in Australia unless the Tribunal was otherwise satisfied that the conduct was not engaged in for the purpose of strengthening the refugee claim.
The learned Federal Magistrate found that the Tribunal was not satisfied on careful consideration of the evidence that the appellant’s conduct was engaged in otherwise than for a purpose of strengthening his refugee claim. Her Honour concluded that the Tribunal’s factual finding was open on the evidence put before the Tribunal by the appellant and could not be disturbed.
There was no legal error whatsoever on the part of the learned Federal Magistrate in reaching this conclusion. Moreover, the appellant has failed to point to any specific error in relation to the finding of the Tribunal.
This Court does not have jurisdiction in applications under the Act to engage in a review of the findings of fact reached by the Tribunal or to reconsider the merits of the decision by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Ground 1 is not made out.
Ground 2
In relation to the second ground, the appellant in substance is challenging the Tribunal’s final finding as to his credit and the credit of a witness who gave evidence at the Tribunal hearing, namely, a witness known as ‘Jenny’.
Once again, her Honour Federal Magistrate Emmett correctly observed that the appellant and the witness ‘Jenny’ gave evidence before the Tribunal that was inconsistent. It was open, therefore, on the evidence before the Tribunal, for the Tribunal to reach adverse credibility findings against both the appellant and the witness ‘Jenny’ as a result of those inconsistencies. There was a basis for the finding and it is inappropriate to interfere with it: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
The findings being open, they should not be disturbed: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. I am unable to discern any jurisdictional error and accordingly Ground 2 should be rejected.
CONCLUSION
The appeal will be dismissed. The appellant is ordered to pay the costs of the first respondent fixed at $3,310.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 16 May 2008
The Appellant represented himself Counsel for the First Respondent: MP Cleary Solicitor for the First Respondents: Clayton Utz
Date of Hearing: 15 May 2008 Date of Judgment: 16 May 2008
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