SZLLS v Minister for Immigration and Citizenship

[2008] FCA 1082

FEDERAL COURT OF AUSTRALIA

SZLLS v Minister for Immigration and Citizenship [2008] FCA 1082

Migration Act 1958 (Cth) ss 91R(3), 424A, 425

SZLLS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 604 OF 2008

BRANSON J
14 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 604 OF 2008

BETWEEN:

SZLLS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	14 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant 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 604 OF 2008

BETWEEN:

SZLLS
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BRANSON J
DATE:	14 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has applied to the Court for an extension of time within which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court.  The judgment of the Federal Magistrates Court was given on 7 April 2008 and the present application was made on 30 April 2008.  There was therefore only a short period of time between the date of the filing of the application and the expiration of the time within which the notice of appeal ought to have been filed and served. 

2. Although I am satisfied that the applicant was in Court on 7 April 2008, and so learnt of the judgment of the Federal Magistrates Court on that day, I also accept that he does not read English.  I accept that it is more likely than not that he did not receive the written reasons for judgment of the Federal Magistrate until approximately 28 April 2008.  In these circumstances, were I satisfied that an appeal had any chance of success, I would feel that the statutory requirement for an extension of time had been satisfied.  However, I am not satisfied that the appeal which the applicant wishes to institute has any reasonable prospect of success.

3. The decision of the learned Federal Magistrate was to dismiss the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision of the Tribunal was to affirm a decision not to grant the applicant a protection visa.  The Tribunal affirmed the decision not to grant the applicant a protection visa because it did not regard him as a reliable, credible and truthful witness.

4. The claim of the applicant to be entitled to a protection visa was based on his adherence to the Christian religion and his activities in spreading the Christian gospel in China.  The Tribunal identified six separate reasons for not accepting the applicant as a truthful witness.  First, the Tribunal found that the applicant’s account of being arrested, detained and then released by Chinese authorities after being found at a Christian gathering was neither plausible nor credible.  Secondly, the Tribunal found that the applicant’s oral account of being interrogated following his release was implausible.  Thirdly, the Tribunal noted that the applicant claimed to be devoted to spreading the Christian gospel but had not even invited his wife to join the local church.  Fourthly, the Tribunal found that the applicant’s evidence concerning his work and income in China was unconvincing.  Fifthly, the Tribunal noted that the applicant had departed China without difficulty using a passport issued in his own name which, it concluded, was inconsistent with his claim to have been detained on one occasion and questioned more than ten times by the Chinese authorities prior to his departure.  Sixthly, the Tribunal concluded that the applicant’s knowledge of certain aspects of his church’s ideology was inconsistent with his claimed religious profile.

5. In summary, the Tribunal concluded that the totality of the applicant’s evidence showed a propensity to tailor and shift his evidence in a manner to achieve his own purposes.  The Tribunal did not accept that he had been involved in any local church activities in China and it therefore did not accept that he had been detained and mistreated for the reasons he had provided.  The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

6. Unsurprisingly in the circumstances, the learned Federal Magistrate rejected the contentions put to him that the Tribunal’s decision was affected by jurisdictional error.

7. The arguments put to this Court today are essentially the same as the arguments that were advanced before the learned Federal Magistrate. 

8. First, the applicant challenged the Tribunal’s findings of credibility.  Findings of credibility are peculiarly within the province of the Tribunal.  The learned Federal Magistrate rightly rejected the arguments that the credibility findings of themselves established jurisdictional error by the Tribunal.

9. Secondly, the applicant claimed that he was not given by the Tribunal a meaningful opportunity to present evidence as required by s 425 of the Migration Act 1958 (Cth) (“the Act”). The applicant accepts that in fact he had considerable time to give evidence before the Tribunal and that the Tribunal conducted two hearings in his case. The complaint of the applicant appears to be that the second hearing was not a complete rehearing of his claims. The Tribunal allowed the applicant a second hearing so that a particular issue could be addressed by the Tribunal, namely the implications of s 91R(3) of the Act. At issue was whether the Tribunal might find that his conduct in Australia had been engaged in for the purpose of strengthening his claim to be a refugee. The Tribunal did not commit any error by failing to allow the applicant to completely readdress his claims at that second hearing.

10. The applicant also alleges a breach of s 424A of the Act by the Tribunal. The information identified by the applicant as being information to which s 424A applied is in fact information excluded from the operation of that section by 424A(3).

11. The decision of the Tribunal was wholly based on its adverse credibility findings.  There is, in my view, no reasonable prospect that any appeal from the decision of the Federal Magistrates Court could succeed.  For this reason this application will be dismissed.

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

Associate:

Dated:        22 July 2008

Counsel for the Applicant:	The Applicant appeared in person
Advocate (Solicitor) for the First Respondent:	Ms L Combes
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	14 July 2008
Date of Judgment:	14 July 2008