SZLPM v Minister for Immigration and Citizenship

[2008] FCA 652

FEDERAL COURT OF AUSTRALIA

SZLPM v Minister for Immigration and Citizenship [2008] FCA 652

SZLPM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 261 OF 2008

BESANKO J
14 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 261 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLPM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	14 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	NSD 261 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLPM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	14 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate. The appellant applied for judicial review in relation to a decision of the Refugee Review Tribunal (“Tribunal”). The Federal Magistrate dismissed her application.

2. The appellant is a citizen of the People’s Republic of China (“China”). She arrived in Australia on 6 February 2007 and, on 22 March 2007, she lodged an application with the then Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa (“protection visa”).

3. In a statement lodged with her application, the appellant stated that she was born in Fujian Province, China, on 3 August 1963. She left school in 1978 and thereafter performed farm work for a number of years. She was married in May 1985 and there were two children of the marriage. After she married, the appellant carried out home duties. In November 2005 her husband was killed in a traffic accident. The appellant claimed that the accident was never investigated properly by the authorities and that she received no compensation in relation to the death of her husband. In January 2006, she was visited by a Christian woman who provided her with assistance. The appellant claimed that she became attracted to Christianity and in May 2006 she was baptised. The appellant claimed that the Christian church that she belonged to was an unofficial church. The appellant claimed that the authorities in China considered that the communist party was the only “saviour” of the ordinary people. However, the appellant claimed that she did not desist from her religious activities and that in October 2006 she was arrested. She was detained for a month in poor conditions. She was released by the police in November 2006 and, in due course with the help of her Christian friends, she was able to travel to Australia.

4. On 31 May 2007 a delegate of the Minister for Immigration and Citizenship advised the appellant that a decision had been made to refuse her application for a protection visa.

5. On 27 June 2007 the appellant lodged an application for review with the Tribunal. The Tribunal was unable to make a favourable decision on the information provided by the appellant, and she was invited to attend a hearing of the Tribunal on 24 September 2007. The appellant attended the hearing of the Tribunal and she gave evidence and presented arguments. On 9 October 2007 the appellant was advised by the Tribunal that her application for review had been unsuccessful and that the Tribunal had decided to affirm the decision not to grant her a protection visa.

6. On 31 October 2007 the appellant lodged an application for judicial review with the Federal Magistrates Court. The application contained two grounds. First, it was alleged that the Tribunal failed to comply with its obligation under s 424A of the Migration Act 1958 (Cth) (“the Act”). Secondly, it was alleged that the Tribunal committed a jurisdictional error by failing to deal with an integer of the appellant’s claims.

7. The Federal Magistrate heard argument on 6 February 2008 and, on the same day, he dismissed the appellant’s application. In addition to the two grounds referred to above, the Federal Magistrate noted that the appellant’s written submissions sought to raise two additional issues, namely, a claim that the Tribunal failed to consider important evidence relating to the appellant’s claim based on her religion and, in that regard, the appellant suggested that there was a distinction between the official church in China and unofficial churches, and a claim that the Tribunal failed to consider the appellant’s evidence fairly and properly.

8. The Federal Magistrate said that none of the grounds raised by the appellant could be sustained. He said that, in essence, the Tribunal’s decision was based on the appellant’s own evidence. There was a reference by the Tribunal to country information but the Tribunal was not required to give particulars of that information under s 424A of the Act (see subs (3)(a)). The Federal Magistrate said that the Tribunal did not overlook any element or integer of the appellant’s claims, and he said that a distinction between the official and unofficial churches in China was not material to the decision in the case because the appellant’s claim to have been a Christian in China in any church was rejected on credibility grounds. The Federal Magistrate noted that the Tribunal had referred to the fact that the appellant was a widow, that she had a limited education and employment background and that she had not been provided with any financial compensation after her husband’s death. He said that the Tribunal had taken into account the fact that the appellant had suffered both emotional and financial hardship. However, the Federal Magistrate said that there was no “Convention nexus” between her husband’s accident and the Convention. The Federal Magistrate noted that it followed from what the appellant had told him that her Christian faith could not have been a factor in her husband’s accident. The Federal Magistrate said that the Tribunal’s decision was not affected by jurisdictional error and that therefore the application had to be dismissed.

9. The appellant’s submissions to this Court have not identified any error in the reasons of the Federal Magistrate. His decision should be upheld for the reasons he gave.

10. The appellant also submitted that the Tribunal had committed a jurisdictional error because it had relied on s 91R of the Act and yet had not advised her under s 424A of the Act that it proposed to do so. As to this matter, the Tribunal said:

    “Ms [SZLPM] has indicated in her evidence that her attendance at church in Australia was a continuation of her involvement in a church in China. As noted above, the Tribunal was not satisfied that she was a Christian in an underground church in China, and infers from her apparently abrupt decision to attend a church in Australia that her purpose in doing so was to strengthen her claim to be a refugee. The Tribunal was not satisfied that she engaged in that conduct otherwise than for the purpose of strengthening who [sic] claim to be a refugee, so must disregard that conduct in considering whether she meets the definition of refugee.”

11. There is nothing to suggest that those findings were not open to the Tribunal. Section 424A was not engaged because the onus was on the appellant to satisfy the Minister in terms of s 91R(3), and to the extent that the Tribunal’s decision was based on information, that was information given to the Tribunal for the purposes of the application for review (see s 424A(3)(b)).

12. In my opinion, no error in the reasoning of the Federal Magistrate has been demonstrated, and the appeal must be dismissed.

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

Associate:

Dated:       14 May 2008

The Appellant appeared in person.
Counsel for the Respondents:	Ms B Rayment
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	12 May 2008
Date of Judgment:	14 May 2008