SZJFP v Minister for Immigration and Citizenship

[2007] FCA 1963

FEDERAL COURT OF AUSTRALIA

SZJFP v Minister for Immigration and Citizenship [2007] FCA 1963

SZJFP AND SZJFQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1797 OF 2007

GRAHAM J
14 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1797 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJFP
First Appellant

SZJFQ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	14 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first appellant pay the respondent Minister’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 1797 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJFP
First Appellant

SZJFQ
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	14 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The critical issue for the Refugee Review Tribunal (‘the Tribunal’) in this matter was to consider whether, owing to well-founded fear of being persecuted for reasons of religion, the first appellant was outside the country of his nationality. 

2. The appellants have filed a written submission in support of their Notice of Appeal in which they have stated the crucial issue to be ‘whether or not my wife and I are genuine Catholics with genuine beliefs in God’.

3. It seems to me that the appellants’ statement of the crucial issue misses the point which the Tribunal was required to consider.  The first appellant claimed to have a well-founded fear of persecution were he to return to China because his shop in China had been closed and he had been charged with holding illegal gatherings and undertaking illegal religious activity.  The Tribunal accepted that the appellants were ‘church-believers’ and that they had been baptised.  There does not appear to me to have been any issue before the Tribunal as to whether the appellants were genuine Catholics with genuine beliefs in God.

4. The first appellant was baptised on 25 December 2003.  The second appellant had been baptised on 25 August 1987.  No claims were made before the Tribunal that the second appellant had a well-founded fear of persecution for reason of her religion.  

5. It would appear that the Tribunal was satisfied that even if the appellants on their return to China sought to be involved with the Roman Catholic Church now or in the reasonably foreseeable future, there was not a real chance that either of them would be subjected to serious harm amounting to persecution on that basis or for any other Convention-related reason.

6. The Tribunal was not satisfied that the first appellant was as active in the Roman Catholic underground church in China as he claimed to be.  The Tribunal was not satisfied that he was interrogated by the PSB on seven or eight occasions, the PSB suspecting him of being involved in illegal religious gatherings, or that they closed the first appellant’s home and shop for reason of his involvement in the activities of the underground Roman Catholic Church or for any other Convention-related reason.

7. Section 65 of the Migration Act 1958 (Cth) (‘the Act’) relevantly provides in respect of visa applications:

   ‘65(1)After considering a valid application for a visa, the Minister:

   (a)       if satisfied that:

   …

   (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; …

   …

   is to grant the visa; or

   (b)       if not so satisfied, is to refuse to grant the visa.’

8. The relevant criterion for the grant of a Protection (Class XA) visa is to be found in s 36(2)(a) of the Act, which provides:

   ‘36(2)A criterion for a protection visa is that the applicant for the visa is:

   (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …’

9. The Refugees Convention there referred to was the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, and I will collectively refer to the Convention as amended by the Protocol as ‘the Refugees Convention’.

10. Proceedings before the Tribunal are not adversarial but inquisitorial.  The Tribunal is not in the position of the contradictor of the case being advanced by an applicant.  The Tribunal Member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair.  In an application for review before the Tribunal it is for the applicant to advance whatever evidence or arguments he wishes to advance and for the Tribunal to decide whether his claim has been made out.  It is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. 

11. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark upon (see per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs);  Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] – [58]).

12. Reference has been made in the Notice of Appeal in this matter to ss 424A and 425 of the Act. I will return to further consider those provisions shortly.

13. It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; not does it require the Tribunal to carry out any inquiry in order to identify what that case might be (Minister for Immigration v SCAR (2003) 128 FCR 553 at [36]). In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [47]-[48] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in relation to matters of procedural fairness at a Tribunal hearing:

    ‘[47]    … It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.  The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor.  But where, as here, there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 

    [48]     … as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:

    … the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision.  If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

    Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.’  (footnotes omitted)

14. The male appellant was born in China on 21 June 1962.  The female appellant was born in China on 22 December 1964.  They are husband and wife.  On 28 December 2001 the second appellant secured a passport from the People’s Republic of China and on 28 March 2002 the first appellant secured a passport, issued in Fujian, from the People’s Republic of China.  The appellants arrived in Australia on 31 December 2005, travelling on visas which had been issued to them by the Australian Government. 

15. On 7 February 2006 the first appellant made an application for a Protection (Class XA) visa and included the second appellant in his application as a member of his family unit.   On 10 March 2006 the Minister’s delegate refused the application. 

16. On 11 April 2006 the appellants applied to the Tribunal for review of the Minister’s delegate’s decision.   They were extended an invitation to appear at a hearing before the Tribunal on 5 July 2006 and appeared before the Tribunal together with a Father Paul McGee.  On 6 July 2006 the Tribunal decided the case adversely to the appellants and affirmed the decision of the Minister’s delegate not to grant the appellants Protection (Class XA) visas.  That decision was handed down on 18 July 2006. 

17. The appellants applied to the Federal Magistrates Court on 17 August 2006 for constitutional writ relief in respect of the Tribunal’s decision.  An Amended application was filed on 9 November 2006 which came before the Federal Magistrates Court of Australia for hearing on 19 June 2007.  A hearing proceeded before Lloyd-Jones FM on that date and on 14 August 2007 his Honour ordered that the application be dismissed and ordered the appellants to pay the respondent Minister’s costs and disbursements of and incidental to the application. 

18. On 4 September 2007 the appellants filed a Notice of Appeal from that decision in this Court. 

19. The application brought by the appellants in the Federal Magistrates Court was the subject of directions on 19 September 2006 and also 23 November 2006.  The first appellant acknowledges that he was present on 19 September 2006 and that he signed a document on that day which included material about access to hearing tapes which could be obtained and used in evidence on the hearing of an application for relief in the Federal Magistrates Court.

20. An order was made by Lloyd-Jones FM on 19 September 2006 dealing with the possible use of tapes and/or a transcript of the proceedings before the Tribunal on the hearing of the application in the Federal Magistrates Court.  No evidence was tendered by the appellants on the hearing of their application for relief in the Federal Magistrates Court to allow them to properly complain about what they described in their submissions as inadequate questioning by the Tribunal of them concerning their religious beliefs and involvement in religious activities and complaints they may have had about inadequate interpretation of the questions and answers that were provided in the Tribunal hearing.

21. The Tribunal said in its reasons for decision:

    ‘… the Tribunal has not been able to satisfy itself that the Applicant was an active Christian in the Roman Catholic underground church China who has a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis.  Indeed, the Tribunal is satisfied that if the Applicant had been an active Christian, Bishop Joseph-Lin, Yuan Tuan would have mentioned this in some way or other as he did in regard to the second named Applicant when he said that she had taken part in the reconciliation and confession, believes in the Roman Catholic Church, and is a pious and loyal Catholic.  It also follows the Tribunal does not accept his further claim that he is regarded as a key member of the underground church in China and finds that he has embellished his claims in order to enhance his claims for a protection visa.  In short, the Tribunal finds that the Applicant is not a credible witness.  …

    … the Tribunal has not been able to satisfy itself that the Applicant was what could reasonably be regarded as an active Christian in China who was engaged in the activities of the underground Roman Catholic Church and does not accept these claims.  Indeed, the Tribunal is satisfied from his responses at the hearing that he does not even know the differences between the official patriotic church and the Roman Catholic Church in China.  It also follows that given all the above the Tribunal does not accept the claims that flow from this including that he attended illegal Christian gathering in China, he was interrogated by the PSB on 7 or 8 occasions, the PSB suspected him to be involved in illegal religious gatherings, or that they have closed his home and shop for this or for any other Convention related reason.’    (Emphasis added)

22. The first appellant’s case had been that because of his active involvement in the underground church he was at risk of persecution.  It seems to me that on the material available to the Tribunal and referred to in the Tribunal’s ‘STATEMENT OF DECISION AND REASONS’ it was open to it to make the findings which it did.  There was no inconsistency between the findings made by the Tribunal that the appellants were church believers and had been baptised, and the findings that the first appellant did not have the degree of active involvement in the church of which he claimed to be an adherent such that there was any risk of persecution for him.

23. On the hearing of the appeal, the appellants sought to rely upon fresh material to support their claims that they were genuine Christians and genuine adherents of the Roman Catholic Church.  It was explained to them that this was not a hearing on the merits and it was not open to the Court to have regard to additional material of that nature which was not available to the Tribunal. 

24. The first appellant complained that the findings made by the Tribunal that his evidence was vague stemmed from the fact that the Tribunal had only asked vague questions and asked an insufficient number of questions.  As has earlier been explained, it was for the appellants to advance whatever evidence or argument they wished to advance and for the Tribunal to decide whether their claims that the first appellant was a refugee within the meaning of the Refugees Convention had been made out.

25. A similar answer to the appellants’ claim that the Tribunal did not ask enough questions about the time and place of an incident of which he gave evidence and what happened at that time should be provided.  It was for the appellants to advance whatever evidence or argument they wished to advance and for the Tribunal to decide whether their claims that the first appellant was a refugee within the meaning of the Refugees Convention had been made out. 

26. In the Notice of Appeal, the appellants claimed that the Tribunal had failed to comply with its obligation under s 424A(1) of the Act. It is clear from the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 that this submission is without substance. Indeed, I would observe that the appellant has no idea what s 424A(1) of the Act is about. He says that it was included in the Notice of Appeal because a friend prepared the notice for him.

27. The same observation may be made in respect of s 425 of the Act. It is implicit from the terms of s 425(1) that not only must an appropriate invitation be extended, but also it should be followed by a corresponding hearing at which the opportunity to give evidence and present arguments relating to the issues arising from the decision under review will be afforded to applicants, subject to the provisions of s 425(3).

28. In my opinion there has been no discernible shortcoming in the discharge by the Tribunal of its obligations to provide a fair hearing on the facts of this case.  The suggestion that the evidence of Father McGee was completely ignored does not bear analysis.  Express reference was made to Father McGee’s knowledge and awareness of the appellant’s religious practices in the course of the Tribunal’s reasons for its decision. 

29. In my opinion no jurisdictional error on the part of the Tribunal has been identified and no error on the part of the learned Federal Magistrate has been demonstrated. 

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        10 December 2007

The Appellants appeared in person.
Solicitor for the First Respondent	D J Watson of Australian Government Solicitor
The Second Respondent entered a submitting appearance.
Date of Hearing:	14 November 2007
Date of Judgment:	14 November 2007