SZKIE v Minister for Immigration and Citizenship

[2007] FCA 1340

FEDERAL COURT OF AUSTRALIA

SZKIE v Minister for Immigration & Citizenship [2007] FCA 1340

SZKIE v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1081 OF 2007

JESSUP J
8 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1081 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKIE
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	8 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent fixed in the sum of $3,000.

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	NSD1081 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKIE
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	8 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 29 May 2007 dismissing an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for declarations and other orders directed to the second respondent, the Refugee Review Tribunal (“the Tribunal”), in relation to a decision which it gave on 22 January 2007 to affirm an earlier decision by a delegate of the respondent Minister to refuse the appellant a protection visa pursuant to s 36 of the Act.

2. The Tribunal found that the appellant claimed to be a citizen of China and arrived in Australia on 4 July 2006.  The basis of the persecution which she claimed to fear in China was her Christian religion.  The Tribunal decided the application before it very substantially upon the view which it took about the appellant’s credibility.  Perhaps the main conclusion which sustained the Tribunal’s decision was a finding that the appellant’s conviction to Christianity was not of such a nature that she would engage in religious worship if she returned to China now or in the reasonably foreseeable future.  It found also that the appellant would not engage in religious study upon return to China either now or in the future.  The Tribunal considered a number of ancillary issues which might possibly have sustained the proposition that the appellant feared persecution on account of her Christianity but in each case it decided the matter adversely to the appellant.

3. The appellant’s application to the Federal Magistrates Court was said to have been brought under s 476 of the Act. The Act gives that court the same jurisdiction as the High Court under s 75(v) of the Constitution. Relevantly for present purposes, that jurisdiction relates to the constitutional writs of prohibition and mandamus and to the power to make an injunction against an officer of the Commonwealth. There is no appeal on the merits from a decision of the Tribunal. The Tribunal is the only body which has the authority to give a final ruling on the question whether the circumstances giving rise to the right to be granted a protection visa have been established. It is sufficient for present purposes to say that the task which the appellant faced in the Federal Magistrates Court was to persuade the Magistrate that the Tribunal had constructively failed to exercise its jurisdiction. In her attempt to do that, the appellant relied upon two grounds in her application, namely, that there was an error of law in the Tribunal’s decision which constituted a jurisdictional error, and that there was procedural error amounting to a denial of natural justice. Those grounds were supported by three broadly expressed groups of particulars, within the subparagraphs of which it is possible to find the gravamen of the appellant’s complaint about the way the Tribunal had approached its task.

4. The first group of particulars involved the proposition that the Tribunal had made a series of unwarranted assumptions.  The appellant criticised the following statements by the Tribunal: 

   1.The Tribunal’s statement that the appellant appeared to have memorised her statement, and on occasions was not responsive to the Tribunal’s questions, instead repeating the claims from her statement.  The appellant’s complaint was that the Tribunal’s treatment of her responses in that way was unfair, and seemed to have been based only upon the circumstance that the Tribunal had to repeat its questions to elicit responses from her.

   2.The statement by the Tribunal that the appellant’s conviction to the Christian faith was not of such a nature that she would engage in religious worship if she returned to China, now or in the reasonably foreseeable future, and the further statement that the appellant would not engage in religious study if she returned to China, now or in the reasonably foreseeable future. 

5. As to the first of these claimed unwarranted assumptions, the Magistrate said that it was not such as would justify a finding of jurisdictional error, and appeared to be no more than an attempt to cavil at the Tribunal’s findings about the manner in which the appellant gave her evidence, which, in turn, led to the adverse findings of credibility which the Tribunal made.  As to the second claimed assumption, the Magistrate said that it amounted to no more than a challenge to the factual findings made by the Tribunal, such findings being in the nature of conclusions which were drawn from the appellant’s evidence about her religious beliefs. 

6. The second broad group of particulars in the application before the Magistrate contained an allegation that the Tribunal had failed to comply with its obligations under s 424A of the Act. In the subparagraphs to that particular, the appellant said that the Tribunal had failed to comply with s 424A in the following respects:

   1.In relation to its statement, that there was a lack of supporting evidence, despite the appellant undertaking to provide documents to the Tribunal.

   2.In relation to its statement that the appellant had indicated that she would obtain a copy of her dismissal order from her employer, but had not done so.  The appellant also indicated that she would attempt to provide evidence supporting her claim of detention.  This was not provided to the Tribunal and the appellant had not offered an explanation to the Tribunal.

   3.In relation to its statement that the appellant did not have a firm belief, until she was praying to be able to leave the country, that she was not keen about religion before she arrived in Australia and that she had doubts about God’s almighty powers.

   4.In relation to its statement that a certain Pastor was not certain as to whether or not the appellant was baptised, although he believed that the appellant may have been baptised in China.

7. As to the first two of those categories, the Federal Magistrate said that the circumstances adverted to by the Tribunal did not constitute information for the purpose of s 424A. Rather, they amounted to a lack of information. The Tribunal was referring to the insufficiency of the appellant’s evidence rather than to any information which would attract the operation of s 424A. As to the third of those categories, the Magistrate said that it did not fall within the section because it related to the appellant’s own evidence before the Tribunal. In one respect it fell within the exception in par (b) of subs (3), and in another respect it related again to the insufficiency of the appellant’s evidence. As to the third of those categories, that concerning the Pastor’s state of uncertainty, the Magistrate expressed the view that the Tribunal’s observation was by way of comment on the insufficiency of the evidence available to it.

8. The third broad area of particulars upon which the appellant relied before the Magistrate was that the Tribunal had failed to consider her claims fairly and properly, namely, by failing to conduct what was described as the “real chance” test in the circumstances of her case.  In that regard, the Magistrate rightly pointed out that no particulars of that allegation were provided, and that it was not apparent to him upon what basis the claim could succeed. 

9. For those reasons the Magistrate dismissed the application before him.

10. In her Notice of Appeal in this court filed on 15 June 2007, the appellant reiterates, with little or no variation, the three broad grounds which she advanced in the Federal Magistrates Court.  In each case she contended that the Magistrate had erred in finding against her, but her Notice of Appeal does not articulate any basis or proposition dealing with how the alleged errors are said to have been made.

11. The appellant did not file any written outline of submissions.  She made oral submissions.  She said that the Magistrate did not believe that she was a sincere believer in God.  Subsequent to that opening submission, I rather gathered that her submissions referred indiscriminately both to the Tribunal and to the Magistrate.  She submitted that they thought that her evidence was fabricated, and that they did not believe that she had been persecuted in China.  She said that no-one had shown her any sympathy, and that she now hoped for fair treatment.  She said that she had heard that human rights were protected in Australia, but that she has not received any sympathy or trust from the lower courts.  She said that she was hopeful of another chance at being treated fairly.

12. Ms Clegg, who appeared on behalf of the respondent Minister, submitted that the appellant’s submissions were based upon a misunderstanding of the role of this court and of the role of the Federal Magistrates Court in an application of the kind which was before it.  She submitted that the question which I need to consider is not whether the appellant has received sympathy from the Tribunal or the Federal Magistrates Court, but whether the reasons of the Magistrate demonstrate error.  Undoubtedly Ms Clegg is correct in each of the submissions which she made.  As I pointed out a little earlier, the Tribunal alone is the body with the power to consider the substance of the questions which arise on an application for a protection visa.  The Magistrate was confined to the question whether the Tribunal either exceeded or failed properly to exercise its jurisdiction.

13. The criticisms which the appellant makes of the decision-making process within the Tribunal are in my view directed wholly to matters within jurisdiction.  I can well understand that the appellant would feel hurt, and possibly distressed, by the Tribunal’s refusal to believe in the strength of her faith, but it had a job to do and a decision to make, and neither the Magistrate nor this court has the authority to stand in its place.  Insofar as he considered the extent to which the appellant’s application raised legitimate questions of jurisdiction, I consider that the Federal Magistrate proceeded carefully, thoroughly, and without error.  Nothing in the appellant’s Notice of Appeal or in the submissions she has put to me this afternoon has persuaded me otherwise. 

14. For the above reasons I shall dismiss the appeal.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:
Dated:        31 August 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Ms L Clegg
Solicitor for the Respondents:	Sparke Helmore
Date of Hearing:	8 August 2007
Date of Judgment:	8 August 2007