SZJUO v Minister for Immigration and Citizenship

[2008] FCA 674

FEDERAL COURT OF AUSTRALIA

SZJUO v Minister for Immigration and Citizenship [2008] FCA 674

SZJUO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD381 OF 2008

BESANKO J
16 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD381 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJUO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	16 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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	NSD381 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJUO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	16 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order made by a Federal Magistrate. On 27 February 2008 the Federal Magistrate dismissed an application for judicial review in relation to a decision made by the Refugee Review Tribunal (“the Tribunal”).

2. The appellant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on 18 February 2006. In order to travel from China to Australia she used a passport which had been issued in a name other than her name. On 4 April 2006 the appellant lodged an application with the then Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa (“protection visa”). On 3 July 2006 a delegate wrote to the appellant and advised her that her application for a protection visa had been refused. On 2 August 2006 the appellant made an application for review by the Tribunal. The Tribunal conducted a hearing on 15 September 2006 and the appellant gave oral evidence at the hearing. On 18 September 2006 the Tribunal wrote to the appellant inviting her to comment on information set out in the letter. That letter was an invitation to comment pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”). By letter dated 25 September 2006 the appellant provided her comments on the information set out in the Tribunal’s letter. On 2 November 2006 the Tribunal handed down its decision. The Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant.

3. On 4 December 2006 the appellant lodged an application for judicial review with the Federal Magistrates Court. In that application for review she alleged that the Tribunal had made a jurisdictional error and she put forward five matters in support of that contention. First, she contended that her application had not been assessed properly and fairly by the Tribunal. Secondly, she contended that the Tribunal had ignored the information she had provided to it in response to the invitation to comment dated 18 September 2006. Thirdly, she appears to contend that the information which the Tribunal set out in its letter dated 18 September 2006 was not “the reason, or a part of the reason, for affirming the decision that is under review” in terms of s 424A of the Act. It is not easy to identify the point she is making in this contention. Fourthly, she contended that the Tribunal did not comply with the obligation in s 425 of the Act. In support of that contention she asserted that the Tribunal had not given her a genuine opportunity to give evidence and present her arguments “against” the issues arising from the review application. Fifthly, she repeated the first ground in that she contended that her application had not been assessed fairly and properly by the Tribunal.

4. The Federal Magistrate began her reasons by briefly outlining the appellant’s claims to have a well-founded fear of persecution within the Convention. In January 2003, the appellant commenced employment in a factory owned by a prominent member of a local church. She was introduced to the teachings of the local church and, in June 2003, she was baptised. She said that the local church was regarded by the authorities as “an illegal anti-government religious organisation” and that many of the Christians in the local church had been subject to persecution. The appellant claimed that she spread the Gospel by distributing pamphlets to the local people, organising workers in the factory to study the Bible and other propaganda material, and visited their families and friends to spread the Gospel and set up secret gathering groups. The appellant claimed that she was responsible for one such group. The appellant claimed that the police became interested in the religious activities carried out at the factory. She was regarded by the authorities as suspicious and was detained by the police for about one month. The appellant claimed that whilst in detention she and a friend were subject to physical and mental persecution by the police. After her release from detention, the appellant continued her religious activities. Her friend was arrested in about February 2006 and, in order to escape persecution, the appellant came to Australia.

5. The Federal Magistrate outlined the important conclusions of the Tribunal. She rejected the contention that the Tribunal had not assessed the appellant’s claims fairly and properly. She noted that the appellant’s principal concern was with the manner in which the Tribunal had dealt with the information she had provided to it in response to the Tribunal’s letter dated 18 September 2006. The Federal Magistrate described the appellant’s arguments in the following way:

   “As clarified in oral submissions it appears that the applicant is contending that the Tribunal decision was affected by actual or apprehended bias in the sense that the Tribunal had pre-determined her case prior to the 424A letter, or at least prior to the response, or that an apprehension of bias arose in the circumstances where it did not accept the explanations that the applicant provided in response to the matters put to her pursuant to s 424A.”

6. The Federal Magistrate said that there was nothing to support the appellant’s claim that there was actual or apprehended bias on the part of the Tribunal. The Federal Magistrate said that the Tribunal had acted in accordance with law in sending its letter dated 18 September 2006 and that it was quite clear that the Tribunal had considered the appellant’s comments in response to that letter. The Federal Magistrate said that the appellant’s comments did not amount to fresh claims. The Federal Magistrate rejected the appellant’s contentions that there had been breaches of s 424A and s 425 of the Act respectively. As to the latter section, the Federal Magistrate said:

   “I note that the decision of the delegate turned largely on a finding in relation to the applicant’s credibility and a rejection on that basis of her claim to have been a member of the local or Shouter church. In such circumstances the delegate’s decision indicated to the applicant that all that she said in support of her application for review was in issue.

   The Tribunal account of the hearing indicates that it closely questioned the applicant and alerted her to its concerns in relation to a number of dispositive issues, such as the nature of her claimed involvement with the local church, her claimed dealings with the authorities, the circumstances of her detention and claimed mistreatment, the circumstances of her departure from China, her involvement with any church in Australia and also the level of her knowledge of the local church practices and doctrinal matters.

   In the absence of the transcript of the hearing the applicant has not established that there has been a failure to comply with s 425.”

7. There are five grounds of appeal to this Court. First, the appellant asserts that the Federal Magistrate erred in not concluding that the Tribunal had failed to assess her credibility properly. It is alleged that the Tribunal ignored the appellant’s “important claims and information”. No particulars of this ground are given and it must be rejected. There is nothing in the Tribunal’s reasons to suggest that it erred in its approach to the assessment of the appellant’s credibility.

8. Secondly, the appellant asserts that the Federal Magistrate erred in not concluding that the Tribunal had failed to consider her response to its letter dated 18 September 2006. This ground must be rejected because it is quite clear from the Tribunal’s reasons that it did consider the appellant’s response to its letter.

9. The third ground is that the Federal Magistrate erred in not concluding that there was no evidence that the Tribunal had genuinely, properly and impartially considered her evidence. This ground must be rejected. The Tribunal’s reasons indicate that it considered the appellant’s claims fairly and properly.

10. The fourth ground contains allegations along similar lines to the third ground, but adds that the Federal Magistrate erred in not finding that “the Tribunal did not give the appellant a fair chance” to give evidence and present argument. This ground must be rejected for the reasons given by the Federal Magistrate in her examination of whether there had been a breach of s 425 of the Act. Those reasons are set out above.

11. The fifth ground is that there were “quite significant mistakes” made by the Tribunal. No particulars are given of this ground and it must be rejected. There is nothing in the Tribunal’s reasons which indicate that it made any mistakes going to its jurisdiction.

12. All grounds of appeal fail and the appeal must be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       16 May 2008

The Appellant appeared in person.
Counsel for the First Respondent:	Mr J D Smith
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	14 May 2008
Date of Judgment:	16 May 2008