SZJIH v Minister for Immigration and Citizenship

[2007] FCA 1752

FEDERAL COURT OF AUSTRALIA

SZJIH v Minister for Immigration & Citizenship [2007] FCA 1752

SZJIH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1397 OF 2007

SUNDBERG J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1397 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJIH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE OF ORDER:	16 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.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 1397 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJIH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SUNDBERG J
DATE:	16 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a national of the People’s Republic of China, arrived in Australia on 12 December 2004. He applied for a protection visa on 18 January 2005. A delegate of the first respondent refused the application, and an application for review by the Refugee Review Tribunal was unsuccessful. The appellant’s application for review by the Federal Magistrates Court was dismissed. He now appeals to this Court. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is heard by a single judge.

2. The essence of the appellant’s claim before the Tribunal was an alleged fear of persecution by the authorities for his active involvement in an illegal underground church, namely the ‘Shouters’ church. He claimed that in April 2004 the police arrested members of the church for having an illegal gathering and detained them for two months during which time they were mistreated and beaten.

3. The Tribunal found the appellant had been untruthful in his claims and evidence and had concerns as to his limited knowledge of the Shouters and Christianity. It found he had fabricated his claims. In light of the appellant’s lack of reliability as a witness, the Tribunal could not rely on the documents he submitted. The Tribunal was not satisfied he was a person to whom Australia owed protection obligations.

4. The appellant’s claims before the Magistrate were of bias on the part of the Tribunal; that it misunderstood the evidence; failed to consider s 91R of the Migration Act 1958 (Cth) (‘the Act’); based its decision on assumptions and not evidence; failed to provide an adequate opportunity for him to respond to the substance of the information; and failed to assess the chance of persecution.

5. The Federal Magistrate found the decision of the Tribunal was not affected by jurisdictional error. Her Honour considered all the grounds raised and, amongst other things, noted that the Tribunal had given the appellant an opportunity to explain contradictions in the evidence, that it had made comprehensive adverse findings as to the appellant’s credibility, and had complied with its statutory obligations. Her Honour accordingly dismissed the application.

6. There are four grounds of appeal:

   1.The Tribunal had bias against me and failed to consider my claims.

   2.The Tribunal relied upon irrelevant material for the consideration of my application; the decision was not made based on evidence.

   3.The Tribunal’s satisfaction that I am not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.

   4.The Tribunal did not properly consider in assessing the chance of persecution and persecuted on my return to China based on the member of an underground [group].

7. There are no particulars of these grounds. While the grounds are directed at the Tribunal, this Court can only address error on the Magistrate’s part. I will proceed on the basis that the appellant alleges that the Federal Magistrate erred in finding that no jurisdictional error resulted from the Tribunal’s treatment of the complaints.

8. The allegation of bias is not particularised. There is no evidence in the Tribunal’s reasons or otherwise of actual bias. The test applicable to a reasonable apprehension of bias is whether a “fair‑minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]. The Magistrate said:

   Further, a fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than … with a mind open to persuasion (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).

   At the end of its decision the Tribunal noted that at the conclusion of the hearing it had pointed out to the Applicant that there were contradictions in his claims and evidence and that his claims were not consistent with independent evidence. The Tribunal noted that it gave the Applicant an opportunity to clarify the contradictions but found that the Applicant did not give any explanation that was ‘reasonable or meaningful’.

9. The Magistrate applied the correct test to the assessment of a claim to reasonable apprehension of bias. No error has been shown in the outcome of that assessment.

10. The contention that the Tribunal relied on irrelevant material and its decision was not based on evidence must be rejected. The Tribunal’s decision was primarily based on the adverse credibility findings against the appellant. The Magistrate said at [36] to [38]:

    The Tribunal found that the Applicant had fabricated his claims to be a Christian and a Shouter to enhance his claim for a protection visa and gave his claims no weight. The Tribunal found the Applicant to be ‘totally lacking in credibility’ and ‘untruthful’.

    Having regard to the comprehensive adverse findings of the Applicant’s credibility, the Tribunal found that it could not rely on the document, in the nature of the wanted certificate, provided by the Applicant in support of his review application.

    Based on these findings, the Tribunal concluded that the Applicant’s claims of harm and threats of harm by the Chinese authorities to be a fabrication. The Tribunal, therefore, was not satisfied that the Applicant has a real chance of persecution for a Convention related reason were he to return to the PRC in the foreseeable future and, accordingly, was not satisfied that his fear of persecution for a convention related reason was well‑founded.

11. The Tribunal’s reasons bear this out. The appellant failed to provide meaningful answers to the questions he was asked with respect to the knowledge of his alleged religion. For example, he could not name the first book of the Bible. The answers to other questions asked of the appellant can be found on pages 14‑15 of the Tribunal’s decision. I need not repeat them. The answers do, however, indicate that the appellant has almost no knowledge of the basic precepts of his alleged religion. The answers provided by the appellant (or lack thereof) provided a key plank in the Tribunal’s reasoning process. Her Honour considered that there was no error in that process.

12. Accordingly, the findings of fact made by the Tribunal were open to it based on the material provided during the hearing. Reasons were provided and there is no suggestion in them that the decision was based on irrelevant material, which in any event the appellant did not identify. On the contrary, the material relied upon was cogent and relevant to the appellant’s case. No error has been shown in the Magistrate’s decision on this issue.

13. The contention that the Tribunal’s decision was not based on rational and logical foundations must also be rejected.

14. As the Magistrate said, the “Tribunal had detailed regard to evidence and independent information before it.” The Tribunal’s decision was primarily based on credibility findings adverse to the appellant. Pages 11‑15 of the Tribunal’s decision are illustrative of the Tribunal’s reasoning process and the basis upon which it came to the credibility findings. This reasoning was both rational and logical. No error has been shown in the Magistrate’s treatment of this issue. Given the overlapping nature of the credibility findings in this case, what I have said at [10] to [12] is also relevant here.

15. Having regard to the fact that there is no irrationality or illogicality in the Tribunal’s reasoning, I need not enter upon whether the existence of these characteristics would establish an error of law or jurisdictional error.

16. The final ground claims that the Tribunal did not properly consider the appellant’s chance of persecution based on being a member of an underground group.

17. The Magistrate said at [53] to [54]:

    In ground 4 the Applicant alleges that the Tribunal failed to assess his chances of being persecuted on his return to the PRC. That allegation is not made out on the face of the Tribunal record.

    The Tribunal found the Applicant to be ‘totally lacking in credibility’ with regard to his claim to fear harm in the PRC for reason of his religion.

    Further, the Tribunal made a specific finding, referred to above in these Reasons, that ‘given the significant adverse findings on credibility in relation to the Applicant, the Tribunal cannot be satisfied that the Applicant has a real chance of being persecuted for a Convention reason in China in the foreseeable future’. That finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.

18. The credibility findings made against the appellant were determinative of the matter before the Tribunal. The Tribunal had the advantage of seeing and hearing the appellant give evidence. It explained why it did not believe him. That explanation was rational and persuasive. No error has been shown in the Magistrate’s rejection of this ground.

19. None of the grounds of appeal has been made out, and the appeal must be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:        16 November 2007

The appellant appeared in person.
Counsel for the Respondent:	B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 November 2007
Date of Judgment:	16 November 2007