SZKFP v Minister for Immigration and Citizenship

[2008] FCA 545

FEDERAL COURT OF AUSTRALIA

SZKFP v Minister for Immigration & Citizenship [2008] FCA 545

SZKFP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1923 OF 2007

DOWSETT J

20 FEBRUARY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1923 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKFP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China.  She arrived in Australia on 16 April 2006 and applied for a protection visa on 30 May 2006.  A delegate of the first respondent (the “Minister”) refused that application.  The appellant applied to the Refugee Review Tribunal (the “Tribunal”) for review of that decision.  That application was unsuccessful.  The appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision.  The Federal Magistrate declined that application.  This is an appeal from that decision.  However, as is common in these cases, the grounds of appeal appear more like grounds for review of an administrative decision than an attempt to identify error in the Federal Magistrate’s reasons.  In other words, the appellant asserts that the Federal Magistrate erred by not acting upon her criticisms of the Tribunal’s decision. 

2. The appellant’s claim to refugee status depended upon her assertion that she feared persecution in China for reason of her religious beliefs.  She claimed to be a Christian of long standing and to have been actively involved in the affairs of an unofficial Chinese Church.  While she had been a Christian for some time, it seems that her fear of persecution related to a period during which she became more closely involved in the distribution of Bibles in China.  She feared that this activity would attract persecution should she return to China. 

3. Having interviewed the appellant, the delegate concluded that her knowledge of Christianity was superficial.  The Tribunal put that matter to her in a letter issued pursuant to s 424A and invited her to comment on it.  She now complains that she was not given access to a recording of the interview.  That point was not raised before the Federal Magistrate.  I do not consider that the appellant should be allowed to raise it now.  She seems never to have asserted that the Tribunal acted upon a version of the interview which was incorrect.  The Tribunal also questioned her about certain aspects of the Christian faith and formed the view that her knowledge of Christianity was superficial and did not demonstrate a lengthy involvement with the Church. 

4. I am sometimes concerned by the assumptions which often seem to underlie conclusions reached by the Tribunal concerning an applicant’s knowledge of Christianity.  There are, even in Australia, many versions of the faith.  I suspect that we know very little about versions of it which exist in other countries, particularly in a closed country such as China, where Christians have long been isolated from the wider Church.  Tribunal members should be cautious in making assumptions about the core knowledge of Christianity for an adherent in a different country.  Having said that, however, it must be conceded that the appellant disclosed some surprising misunderstandings.  It cannot be said that the Tribunal acted beyond its power in drawing the inference that the extent of her knowledge was inconsistent with her claims. 

5. Before the Federal Magistrate, the appellant asserted that the Tribunal had not complied with its obligations pursuant to ss 424A and 425 of the Act.  As I have said, a notice was given pursuant to s 424A.  No attempt was made, either before the Federal Magistrate or on appeal, to identify relevant matters which were not raised in the notice.  The appellant’s real complaint is that she was not given a further opportunity to persuade the Tribunal as to the merits of her case, to comment upon possible findings as to credibility or to comment as to the proposed reasoning process.  In the absence of any specific matter identified as properly the subject of s 424A and not dealt with in the notice, there is no basis for the allegation of failure to comply with that section.  Similar comments apply to the complaint concerning s 425. 

6. The third complaint before the Federal Magistrate was that the Tribunal had not properly considered the appellant’s claims.  She claimed that the Tribunal had been unfair in its finding concerning her religious knowledge.  As I have said, the Tribunal did not, in my view, venture beyond the appropriate boundaries in that respect.  The appellant then asserted that the Tribunal failed to consider her major claim which was that she had transported or smuggled Bibles from overseas to mainland China.  The Tribunal did not accept her claim of such involvement. 

7. The appellant also asserted that the Tribunal had refused genuinely to assess the evidence favourable to her, and that it had displayed a propensity to adopt illogical or unbalanced reasons for rejecting her evidence.  In particular, she complained that the Tribunal assumed that she had obtained her religious knowledge since coming to Australia.  Whilst it appears that the Tribunal drew such an inference, that was only part of its finding that her knowledge was not that which would be expected of a person having the background in the Church which she claimed.  She also claimed involvement with churches in Sydney since her arrival in Australia.  The Tribunal recorded that she had not named the churches when asked to do so, but had identified two people who, she said, led services.  Whilst it may be implicit in the Tribunal’s reasons that her attendance at Church activities in Sydney was an attempt to bolster her case for refugee status, that conclusion flowed from its conclusion that there were deficiencies in her knowledge.  

8. She also complained that the Tribunal had not indicated to her that she should try to obtain some evidence from fellow Churchgoers as to her involvement.  The Tribunal could have taken that course, but there is a limit to the extent to which it can assist applicants in preparing their cases.  That it did not take that step does not demonstrate jurisdictional error. 

9. The appellant also claimed that the Tribunal had failed to consider documentary evidence.  The documents were a document evidencing her release from confinement in China for medical reasons and two medical certificates.  The Tribunal understood the alleged significance of the first document but rejected it upon the basis that it was inconsistent with the appellant’s own claims as to the period of her detention.  Again, it was for the Tribunal to determine the weight to be attributed to the document, given that it was produced by the appellant and not independently verified.  Other Tribunals may have taken different approaches, but it cannot be said that the Tribunal’s approach demonstrated jurisdictional error.  As to the medical reports, the Tribunal considered them but found them to be of no assistance.

10. Before me the appellant asserted on a number of occasions that the Tribunal had not understood her case.  She seemed to think that the Tribunal had treated her as claiming to have been a member of the clergy of the Chinese Church when, in fact, her claim was that she had been actively involved in the distribution of Bibles.  I discern no such error in the Tribunal’s reasons.  The Tribunal understood that she was attributing her fear of persecution to such activity.  There is nothing in the reasons which suggests that the Tribunal thought that she was claiming to be a member of the clergy. 

11. Finally, in the course of her submissions, the appellant asserted that the Tribunal had said, at the beginning of its hearing, that it did not believe that she was a refugee.  This might raise a claim of actual or apprehended bias, but there is no sworn evidence to that effect.  It was not raised before the Federal Magistrate.  It is too late to raise it now. 

12. In the circumstances the appeal must be dismissed.  There will be an order that the appellant pay the respondents’ costs of the appeal.

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

Associate:

Dated:       22 April 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms K Morgan
Solicitor for the First Respondent:	DLA Phillips Fox
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	20 February 2008
Date of Judgment:	20 February 2008