SZJYE v Minister for Immigration and Citizenship

[2007] FCA 1181

FEDERAL COURT OF AUSTRALIA

SZJYE v Minister for Immigration and Citizenship [2007] FCA 1181

SZJYE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 904 OF 2007

STONE J
7 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 904 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	7 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

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 904 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJYE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	STONE J
DATE:	7 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China who arrived in Australia on 13 May 2006.  Shortly after her arrival she applied for a protection visa, claiming to be a victim of persecution in China because she is a Catholic.  Her application was refused in turn by a delegate of the First Respondent and the Refugee Review Tribunal.  Her application to the Federal Magistrates Court for judicial review was refused.  She now appeals to this Court.

2. In setting out its findings and reasons, the Tribunal stated that the appellant could not adequately or plausibly explain why she became interested in becoming a Catholic, nor was she able to explain or describe any beliefs or practices specific to the Catholic faith.  The Tribunal noted the evidence of the appellant was confused, and also that the appellant had, since her arrival in Australia, attended only a single Christian service, at a non-Catholic church.  Accordingly, the Tribunal did not accept the appellant was a Catholic and a member of an underground Catholic church and as such did not accept that the appellant had suffered any harassment or questioning by authorities for such a reason.  The Tribunal supported its finding that the appellant was of no adverse interest to the authorities by noting that the appellant had departed China using her own passport.

3. The Tribunal did not accept the appellant’s claim, advanced for the first time at the hearing, that members of her family had been arrested after her departure for Australia.  Nor did it accord any weight to a document confirming that the appellant was a baptised Catholic, holding that false documents are easy to come by in China.

4. The appellant sought judicial review of the decision of the Tribunal in the Federal Magistrates Court, advancing three grounds for review. In his reasons for judgment (see [2007] FMCA 769 at [12]-[15]) the Federal Magistrate dealt with these grounds as follows:

   Ground 1 alleges bias and a failure to consider the application according to s. 91R of the Migration Act. No details have been provided by the applicant to establish a breach of s. 91R of the Migration Act. The Court accepts the submission for the first respondent that there is nothing to show actual bias, nor anything to show conduct by the Tribunal which might lead a fair minded lay observer to reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided by it…No such conduct has been shown. The Court finds no bias or breach of s. 91R…

   Ground 2 alleges that the Tribunal failed to refer to sufficient independent information because the Tribunal was biased.  The Tribunal’s decision is based on its finding that the applicant is not a Catholic and a member of an underground Catholic Church, for the reasons set out extensively on CB 112.  Having made the finding that the applicant was not a Catholic, it was not necessary or relevant for the Tribunal to examine independent information about possible persecution of Catholics in China.  No bias has been established.  The Tribunal referred to country information to the extent it thought necessary to decide the issues before it.  The extent to which the Tribunal relied on country information is a matter for the Tribunal as is the weight it gives to it…

   Ground 3 alleges a breach of s. 424A.  The Court accepts the submission for the first respondent that the Tribunal’s decision shows that, apart from the applicant’s oral evidence, the information relied on by the Tribunal was the applicant’s passport (which was provided by the applicant for the purposes of the application), and independent country information.  Both of those classes of information are exempt from the notification procedures in s. 424A(1) by s. 424A(3)(b) and (a) respectively.

   The Court accepts the submission for the first respondent that information given to the Tribunal by the applicant at the hearing is covered by the exception in s. 424A(3)(b).  The finding by the Tribunal that the applicant fabricated her evidence at the hearing about her husband’s and sister’s arrest, in response to its assertion that she had not been harmed by the Chinese authorities because of her claimed Catholic beliefs, is therefore covered by the exception in s. 424A(3)(b)…Further, the thought processes and subjective considerations of the Tribunal are not “information” within s. 424A(1)…The Court finds no breach of s. 424A.

5. Accordingly the Federal Magistrate dismissed the application.

6. On 22 May 2007, the appellant filed a Notice of Appeal alleging two grounds of review:

   1.The Tribunal failed to consider my claims for my application for a protection visa due to the Tribunal officer’s bias against me.  The Tribunal also failed to refer to sufficient independent information for the consideration of my application due to the bias against me..

   2.The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application according to S424A of the Migration Act 1958.

7. At the hearing of the appeal the appellant submitted that the Tribunal’s decision was in breach of s 91R(3).  Although this section is not mentioned in the appeal notice it appears that the appellant intended to raise this section in conjunction with her allegation of bias in ground 1.  In any event I permitted her to raise the section.  The first respondent’s counsel, Ms K Morgan, did not oppose this course.  Ultimately, however, this concession was of little assistance as the appellant was not able to make meaningful submissions on either ground of appeal. 

8. This Court appreciates the difficulties that self-represented litigants must overcome in directing their applications to the limited grounds of review available to this Court under the Act.  With these difficulties in mind, I have reviewed the reasons of both the Tribunal and the Federal Magistrate.  It is my view that the appellant has failed to make out her grounds of appeal. 

9. In relation to s 91R I have specifically considered whether the Tribunal’s reliance on the appellant’s attendance at a non-Catholic church in Australia might be a breach of s 91R(3).  The Tribunal made no finding as to whether this conduct had been engaged in for purposes other than strengthening the appellant’s claim.  I am however, willing to infer such a finding from the Tribunal’s reasons and as such the Tribunal was entitled to take the conduct into account. 

10. There is nothing in the Tribunal’s reasons to suggest any bias against the appellant.  The Tribunal is free to determine for itself the weight it gives to independent country information and the Court is not entitled to interfere with this determination in the absence of jurisdictional error; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The Federal Magistrate was correct in his judgment that the Tribunal correctly applied s 424A of the Act. I am satisfied therefore that the reasons of the Tribunal disclose no reviewable error and that therefore the Federal Magistrate was correct to dismiss the application for review.

11. For these reasons the appeal is dismissed, with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .

Associate:

Dated:        8 August 2007

Counsel for the Appellant:	The appellant appeared in person, assisted by an interpreter
Solicitor for the Appellant:
Counsel for the Respondent:	K Morgan
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	7 August 2007
Date of Judgment:	7 August 2007