SZLEY v Minister for Immigration and Citizenship

[2008] FCA 660

FEDERAL COURT OF AUSTRALIA

SZLEY v Minister for Immigration and Citizenship [2008] FCA 660

SZLEY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 280 OF 2008

BESANKO J
15 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 280 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLEY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	15 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal to be taxed.

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 280 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLEY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	15 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate. On 12 February 2008 the Federal Magistrate dismissed an application for judicial review in relation to a decision made by the Refugee Review Tribunal (“Tribunal”).

2. The appellant is a national of the People’s Republic of China (“China”) and he arrived in Australia on 12 April 2007. On or about 7 May 2007 he applied to the then Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa (“protection visa”). On or about 22 May 2007 he was advised by a delegate of the Minister for Immigration and Citizenship that his application for a protection visa had been refused. On 8 June 2007 the appellant applied to the Tribunal for a review of that decision. On 20 June 2007 the Tribunal sent to the appellant a letter pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”). The appellant sent a response to that letter to the Tribunal on or about 3 July 2007. On 24 July 2007 the Tribunal handed down its decision. The Tribunal decided to affirm the delegate’s decision not to grant a protection visa to the appellant.

3. The appellant claims to practise the Christian faith. His departure from Shanghai in China was lawful and he had a passport issued in his own name and a visa issued on 29 March 2007. The appellant claimed that he had a well-founded fear of persecution by the authorities in China because of his Christianity and because of his membership of an illegal church. The appellant claimed that he was arrested and detained by reason of his participation in organising illegal house-church gatherings. The appellant claimed that he was sent to a labour camp, lost his employment and was forced to pay a penalty.

4. On the hearing of the application before the Federal Magistrates Court, the Federal Magistrate referred to the fact that the Tribunal member had noted that the appellant had “a very basic knowledge of Christianity which was incompatible with his claim that he had been involved in religion since 2003”. She referred to the fact that the Tribunal member had found that there were extensive and significant inconsistencies between the appellant’s oral evidence and his written evidence. She referred to the fact that the Tribunal member had found that the applicant was not a credible witness and that he was evasive in his answers and that his oral evidence changed with respect to several claims. She referred to the fact that the Tribunal member had found that the appellant displayed minimal knowledge of Christianity, and a level of knowledge which was inconsistent with the knowledge which would have been expected of a person attending a registered church regularly for about a year, and involvement in an unregistered church for a number of years. The Federal Magistrate referred to the fact that the Tribunal member rejected a number of specific claims by the appellant as to his involvement in the Christian faith. The Federal Magistrate referred to the fact that the Tribunal had concluded that evidence provided by the appellant in support of his claims, namely, a statement by a number of people in China, was of little weight. The Federal Magistrate referred to the fact that the Tribunal member had noted the appellant’s participation in the activities of the Hillsong Church after his arrival in Australia and that she had accepted the appellant’s evidence of that involvement. However, she concluded that the appellant had not satisfied her that he had engaged in that conduct otherwise than for the purpose of strengthening his claims to be a refugee (see s 91R(3)).

5. The appellant raised two grounds in his application for judicial review and they were as follows:

   “1.      Jurisdictional error has been made. RIT ignored my evidences.

   2.Procedural fairness has been denied. I am a Christian. I fear to go back.”

6. As far as the first ground is concerned, the Federal Magistrate noted that it was unsupported by any particulars and that on its face it disclosed no error capable of review by the Federal Magistrates Court. As the argument developed before the Federal Magistrate, it became clear that the appellant was submitting that he was not given a proper opportunity by the Tribunal member to present his case. The Federal Magistrate referred to the Tribunal’s reasons and a transcript of the hearing before the Tribunal member. She reached the conclusion that the Tribunal member had considered the evidence which the appellant had placed before her and that she had given the appellant a proper opportunity to present his case at the hearing. The Federal Magistrate concluded that the findings of fact made by the Tribunal member were open to her on the evidence and that in reaching her conclusions she had correctly applied the law.

7. When the appeal was called on before me, the appellant applied for an adjournment of the hearing of the appeal. He submitted that the hearing should be adjourned because he wished to obtain from China further material about his persecution in that country. He said that the material would show that there was no religious freedom in China and that he was being persecuted. He said that the material would come from his brothers and sisters in the church and some priests. He complained about the fact that the Tribunal did not advise him that the material before it was not sufficient and he submitted that the Tribunal did not send him a notice asking for material. The appellant asked for the hearing of the appeal to be adjourned until after the Olympics because of what he said were the difficulties in obtaining the material before that event.

8. Counsel for the first respondent opposed the adjournment of the hearing of the appeal. He submitted that the foreshadowed material could only go to the merits of the appellant’s application for a protection visa and could not be relevant to the appellant’s appeal from an order dismissing his application for judicial review. In my opinion, the submission of counsel for the first respondent is correct and, in those circumstances, I refused the application for an adjournment and I proceeded to hear the appeal.

9. The notice of appeal contains two grounds of appeal. Neither ground was addressed by the appellant in his oral submissions. The first respondent submits that neither ground was a ground of his application in the Federal Magistrates Court, and the appellant should not be permitted to raise, or rely upon, either ground. I think that submission is right in relation to the first ground of appeal, but it is more difficult for me to be satisfied affirmatively that the second ground of appeal was not part of the appellant’s application in the Federal Magistrates Court. In any event, neither ground has any prospect of success.

10. The first ground of appeal seeks to attack the decision made by the delegate of the Minister. It asserts that the delegate erred in law by failing to interview the appellant before making the decision to refuse his application for a protection visa. This ground of appeal has no prospect of success because the Federal Magistrates Court did not have jurisdiction in relation to the decision of the delegate of the Minister (s 476 of the Act) and, in any event, the delegate of the Minister was under no obligation to interview the appellant.

11. The second ground of appeal is that the Tribunal member had made up her mind against the appellant before hearing from the appellant. The appellant pointed to the letter pursuant to s 424A sent to him on or about 20 June 2007, and certain observations made by the Tribunal member during the course of the hearing. This ground has no prospect of success. As far as the letter pursuant to s 424A of the Act is concerned, the Tribunal was doing no more than carrying out its statutory obligations in sending that letter to the appellant, and the terms of the letter are in accordance with the obligation in s 424A. As far as what was said during the course of the hearing before the Tribunal is concerned, the Tribunal member did not err in putting to the appellant for his comment information which she may consider adverse to his case. In my opinion there is nothing to suggest that the Tribunal member prejudged the appellant’s case.

12. In oral submissions, the appellant submitted that the respective decisions of the delegate and the Tribunal were unfair and that he should have been given the opportunity to prepare or present materials to the Tribunal. The answer to this submission by counsel for the first respondent is correct. First, he pointed to a letter from the Tribunal to the appellant dated 8 June 2007 wherein the appellant was advised that he should immediately send to the Tribunal “any documents, information or other evidence [he] want[ed] the Tribunal to consider”. That letter was sent on the day he lodged his application for review. Secondly, the transcript of the hearing before the Tribunal member records that on at least two occasions the appellant was asked by the Tribunal member whether there was anything else he wished to tell her.

13. There is no error in the reasons of the Federal Magistrate and the appeal must be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        15 May 2008

The Appellant appeared in person.
Counsel for the First Respondent:	Mr G Johnson
Solicitors for the First Respondent:	DLA Phillips Fox

Date of Hearing:	13 May 2008
Date of Judgment:	15 May 2008