SZLIB v Minister for Immigration and Citizenship

[2008] FCA 673

FEDERAL COURT OF AUSTRALIA

SZLIB v Minister for Immigration and Citizenship [2008] FCA 673

SZLIB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD407 OF 2008

BESANKO J
16 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD407 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIB
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	NSD407 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLIB
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 5 March 2008 the Federal Magistrate dismissed the appellant’s application for judicial review in relation to a decision of the Refugee Review Tribunal (“Tribunal”).

2. The appellant is a citizen of the People’s Republic of China (“China”). He arrived in Australia on 23 February 2007 and, on 22 March 2007, he applied to the then Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa (“protection visa”). On 10 April 2007 a delegate of the Minister for Immigration and Citizenship wrote to the appellant advising him that his application for a protection visa had been refused. On 11 May 2007 the appellant lodged an application for review by the Tribunal. The Tribunal conducted a hearing, and the appellant attended the hearing and gave evidence. On 16 August 2007 the Tribunal handed down a decision affirming the decision of the delegate not to grant a protection visa to the appellant.

3. The appellant lodged an application for judicial review in the Federal Magistrates Court. As I have said, on 5 March 2008 the Federal Magistrate dismissed the application.

4. It is convenient to begin by identifying the important conclusions of the Tribunal.

5. The Tribunal noted that the appellant claimed that he would be arrested and mistreated in China because of his membership of, and activities in, the illegal Shouters church. The Tribunal summarised his claims in the following way:

   “In his application for protection the Applicant claims he became friendly with a workmate, […], on a construction site in Fujian in about April 2005 and that he later became aware that […] was a member of the Shouters church. He claims to have attended a gathering of the church in September 2005, to have become a regular participant in Bible studies and worship and to have been baptised on 20 November 2005. He claims to have worked to spread the church in neighbouring villages for eleven months following his return to Yunnan in late 2005.”

6. The Tribunal referred to the appellant’s evidence about basic elements of Christian beliefs and the history of the Shouters church. The Tribunal member said that the appellant demonstrated some knowledge in these areas. However, his knowledge in other areas was lacking in detail. The Tribunal member concluded that the appellant’s account of his activities within the church was not based on “any first-hand authentic experience”. The Tribunal member was not satisfied that the appellant’s oral evidence supported a conclusion that he was a member of the Shouters church in China or that he was ever active in spreading the Shouters religion in his area of Yunnan or anywhere else. The Tribunal member also referred to the appellant’s knowledge of the Bible. He said that the appellant was able to answer some questions but in certain areas his level of understanding was not high. The Tribunal member accepted that the appellant may not have received much formal education and he also accepted that the appellant’s claimed period of involvement in the Shouters church was relatively short. The Tribunal member said that he was not satisfied that the appellant’s demonstrated knowledge of the Bible was consistent with his claim “to have been an active evangelist for the Shouters church, to have been involved in smuggling copies of the Bible and to have participated in regular religious gatherings in which he taught the Bible to others”.

7. The Tribunal member said that he was not satisfied with the appellant’s account of the role played by one of his friends and “co-religionists”.

8. The Tribunal member referred to a supporting letter from a local church in Sydney submitted to the Tribunal by the appellant. The Tribunal member was not satisfied that any significant weight could be placed on it in terms of the appellant’s involvement with that church. The Tribunal member accepted that the local church in Sydney is another name for the church known as the Shouters church in China. He also accepted that the letter was genuine. The Tribunal member goes on to say:

   “However, I note that the writers state only that the Applicant has been ‘meeting regularly’ with the church for the past four months. They do not state that the Applicant is a member of the church. Nor do they state how many times he has actually attended a service of the church or what ‘meeting with’ the church in fact means. While I accept that the letter indicates that the Applicant has had some form of contact with the church I am not satisfied that it is evidence of his membership of it or of his involvement in its religious activities. Given my lack of satisfaction as to the truth of the Applicant’s claims to have been involved with the Shouters church in China, I am not satisfied that his conduct in contacting the Local Church in Sydney has been undertaken otherwise than for the purpose of strengthening his claims to be a refugee and I am required to disregard this conduct in assessing his claims in accordance with 91R(3) of the Act.”

9. The Tribunal member also considered the harm the appellant claimed he had suffered in China. He referred to the appellant’s claims and to the country information and he said that having considered that material he was not satisfied that the appellant “had provided a satisfactory explanation as to how, if he had genuinely been involved in illegal religious activities with […] and was being searched for by the PBS, he was able to leave China using his own passport”.

10. The application for judicial review lodged with the Federal Magistrates Court contained three grounds. Each of those grounds is dealt with by the Federal Magistrate. There are three grounds of appeal to this Court. Two of those grounds complain of how the Federal Magistrate dealt with two grounds in the application for judicial review. The third ground of appeal appears not to have been raised before the Federal Magistrate.

11. The first ground of appeal, which was also a ground advanced before the Magistrate, was that the findings of the Tribunal were inconsistent in that the Tribunal found (so it is said) that the appellant was a member of the local church and yet found that he was not a member of the Shouters church in China. As I have said, the Tribunal member accepted that the local church in Sydney is another name for the church known as the Shouters church in China. There are a number of answers to this contention. First, the Tribunal member did not accept that the appellant was a member of a local church. In discussing the letter from the local church, the Tribunal member said that whilst he accepted that it showed that the appellant had some form of contact with the church, he was not satisfied that it was evidence of the appellant’s membership of it or of his involvement in its religious activities. Secondly, and this was a point made by the Federal Magistrate, there is in any event no inconsistency between the two propositions identified by the appellant. The Federal Magistrate said:

    “Of course it is possible that a person who had no association whatsoever with the Shouters Church in China could attend meetings of the Australian branch. He may do so for a variety of reasons including an attempt to convince the Tribunal that he was a genuine adherent of that sect.”

12. The second ground of appeal was not a ground in the application for judicial review in the Federal Magistrates Court. The appellant refers to s 420 of the Migration Act 1958 (Cth) (“the Act”) and, in particular, the obligation of the Tribunal to “act according to substantial justice and the merits of the case”. The appellant’s contention was as follows:

    “It is apparently that making its findings based on incorrect information must be significant evidence that the Tribunal has NOT acted according to substantial justice and the merits of the case.”

13. The first respondent’s response to this ground of appeal is correct. First, s 420 does not give rise to any independent obligations on the Tribunal of a procedural nature. Secondly, no particulars have been provided as to the information said to be incorrectly relied upon. Thirdly, if this contention is in fact intended to reflect the second ground in the appellant’s application for judicial review, then, the Federal Magistrate’s reasons for rejecting that ground are correct. His Honour considered that the Tribunal member had explained his findings in relation to the appellant’s departure from China and his use of independent country information. The Federal Magistrate also said that if (contrary to his conclusion) the Tribunal had made “some error of fact”, that was not in itself a jurisdictional error.

14. The third ground of appeal was also a ground of the application for judicial review. It is that the Tribunal failed to comply with the obligation in s 424A of the Act. The appellant identified two pieces of information which he said fall within the terms of the section, namely, the letter from the local church in Sydney, and “information in relation to particular Bible which has been used by the local church and which has been smuggled by me”. The Federal Magistrate said that there had been no breach of s 424A and, in my opinion, he was correct. As far as the letter from the local church in Sydney was concerned, that document was accepted by the Tribunal, and therefore could not be said to be “the reason, or a part of the reason, for affirming the decision that is under review”. Furthermore, even if this was not correct, the letter was a document provided to the Tribunal by the appellant, and therefore fell within the exemption in s 424A(3)(b) of the Act. As far as the information in relation to the particular Bible is concerned, the Federal Magistrate noted that the Tribunal member asked the appellant a number of questions about that topic but any concern the Tribunal member felt about the appellant’s claims did not form part of the findings and reasons of the Tribunal member and, therefore, any information in relation to that topic, was not “the reason or a part of the reason for affirming the decision that is under review”. No error in the reasons of the Federal Magistrate has been demonstrated.

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

I certify that the preceding fifteen (15) 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:	Ms A Nanson
Solicitor for the First Respondent:	Australian Government Solicitor

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