SZLSY v Minister for Immigration and Citizenship

Case •

[2008] FCA 1144

•

6 August 2008

FEDERAL COURT OF AUSTRALIA

SZLSY v Minister for Immigration and Citizenship [2008] FCA 1144

Migration Act1958 (Cth) s 91R(1), 424A, 424A(1), 424A(3)(a), 424A(3)(b)

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6
SZLSY v Minister for Immigration and Citizenship [2008] FMCA 582

SZLSY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 575 OF 2008

MCKERRACHER J
6 AUGUST 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 575 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLSY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

6 AUGUST 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant is to pay the first respondent’s costs of the appeal, to be taxed if not agreed.

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 575 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLSY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

MCKERRACHER J

DATE:

6 AUGUST 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This is an appeal from a judgment of a Federal Magistrate (SZLSY v Minister for Immigration and Citizenship [2008] FMCA 582) delivered on 7 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 November 2007. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

  2. The appellant is a citizen of People’s Republic of China.  She arrived in Australia on 30 May 2007.  On 8 June 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).  A delegate of the first respondent refused the application for a protection visa on 23 June 2007.  On 27 July 2007, the appellant applied to the Tribunal for a review of that decision. 

    THE APPELLANT’S CLAIMS

  3. The appellant claimed to fear persecution in China because she was a member of an underground Catholic Church as opposed to the official Catholic Church of China.  She stated that she was born into a Catholic family and was baptised in the Catholic Church.  She also stated that her uncle was a member of the local church council and that many Catholic priests and sisters used the appellant's home as a shelter when the authorities were searching for underground Catholics.

  4. The appellant submitted to the Tribunal that the authorities did not discover that her family had provided shelter to Catholic members of the underground church.  However, they were concerned that they would face trouble if the authorities did find out.  They moved to another city in another province but returned from time to time to attend church services.  In July 2006, the appellant claimed that she met with other Catholics in an underground church, but their meeting was discovered and the police entered the premises, arrested and detained her uncle.

  5. The police took identity details of the other people present.  The appellant left the area and travelled to Malaysia and Singapore in December 2006.  She later came to Australia in May 2007 and attends church activities in a Catholic Church in a suburb of Sydney.  The appellant asserted that she feared arrest if she was forced to return to China.

    BEFORE THE TRIBUNAL

  6. The Tribunal accepted that the appellant was a Catholic and had engaged in activities with the underground Catholic Church.  However, the Tribunal did not accept that this had resulted in the appellant suffering Convention-related harm in China (Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (the Convention).  The Tribunal noted that the appellant had not been arrested at the time of the house raid in 2006 or at any subsequent time and that she had been able to depart China legally.  It did not accept that the appellant had a genuine fear of arrest in these circumstances.

  7. The Tribunal accepted the appellant’s claim that she was required to travel widely due to a shortage of priests in the underground church and that in these circumstances other people might have taken an adverse view of the appellant and her family because of their Catholic beliefs. However, it did not accept that this kind of opprobrium would qualify as serious harm under s 91R(1) of the Migration Act1958 (Cth) (the Act).

  8. Finally, the Tribunal accepted that the appellant was a genuine Catholic who had continued to attend church in Australia.  It found that in light of country information she would be able to continue to practise as a lay member of the Catholic community in China, the probability of persecution on this basis alone being ‘remote’.

    ON REVIEW BY THE FEDERAL MAGISTRATES COURT

  9. Before the Federal Magistrate the appellant claimed that the Tribunal had:

    ·Committed jurisdictional error in relying on a fact of which there was no evidence, namely that ‘the underground Catholic Church and official Catholic Church of the People’s Republic of China was a law of general application’;

    ·Committed jurisdictional error by failing to consider a claim made explicit in the evidence that the appellant faced persecution for reason of her religious activities in China; and

    ·Committed jurisdictional error in misconstruing and misapplying the words ‘for reason of’ in Art 1A(2) of the Convention.

  10. The Federal Magistrate held that the Tribunal had found that Chinese law differentiated between the official and unofficial Catholic churches.  However, its decision was based on its finding that the authorities generally avoided targeting Catholic laity and that as such the chance of persecution being suffered by a person in the appellant’s lay position would be remote.

  11. His Honour went on to find that the Tribunal had clearly addressed the appellant’s primary claim of fearing religious persecution.  It had set out the evidence about that claim in a considerable amount of detail in the decision record.  His Honour concluded that while the Tribunal did consider that a person may be persecuted for more than one reason, there was no indication that the appellant had raised any additional bases.  Nor did the available evidence suggest that the Tribunal had misconstrued her claims.

  12. The Federal Magistrate further found that there had been no breach of s 424A, s 424AA, or s 425 of the Act. In these circumstances, his Honour dismissed the application for review as no jurisdictional error had been demonstrated.

    GROUNDS OF APPEAL

  13. The notice of appeal claimed, inter alia that:

    1.The Tribunal did not give the appellant an opportunity to respond to the independent country information;

    2.The Tribunal failed to comply with s 424A of the Act;

    3.The Tribunal failed to ask the appellant the right questions during the hearing; and

    4.The Tribunal failed to comply with s 91R(3) of the Act.

  14. Although the grounds are directed against the Tribunal rather than the Federal Magistrates Court, for the purposes of this appeal, the grounds will be considered as alleging a failure on the part of the Federal Magistrates Court to identify those failures of the Tribunal. 

    HEARING OF THIS APPEAL

  15. At the hearing of the appeal before me, the appellant submitted that she believed there were difficulties with the interpretation of her evidence before the Tribunal because she was repeatedly asked the same question many times.  The first example that she gave of this repeated questioning was in relation to the topic of why she feared persecution by attending church in China.  In reply, the appellant made the point that there were other questions repeated on several occasions.  She said that she had played the tape of the interview to a friend who agreed with her that it sounded as though the interpretation was inadequate.

  16. The difficulties in interpretation have not been raised on any previous occasion.  It is inappropriate that they be raised for the first time on appeal.  No transcript or tape was provided to support the assertions.  No specific incorrect translations were identified.  In the absence of evidence before the Court disclosing any incompetence or other defect in interpretation such that the appellant was, in effect, prevented from giving her evidence in relation to a matter of significance for her claim or the Tribunal’s decision, there is no support for the appellant’s fresh contention about interpretation difficulties: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.

  17. To the extent that the appellant complains of questioning being repeated on certain topics, this feature of the hearing would not necessarily point only to interpretation difficulties.  It is also quite consistent with the possibility of the Tribunal repeatedly testing certain basic propositions on which it is required to be satisfied rather than simply taking it at face value.  The repetition of questions alone, does not point to any jurisdictional error. 

  18. The appellant also made submissions concerning her fear of persecution by practising her faith but these submissions went to a review of the merits of the conclusion reached by the Tribunal and reviewed by Federal Magistrates Court.  There is no basis upon which the merits fall for review on this appeal. 

    ANALYSIS OF THE GROUNDS OF APPEAL

    Ground 1

  19. Section 424A of the Act requires the Tribunal to provide the applicant with particulars of information if the Tribunal considers it would be the reason or part of the reason for affirming the decision under review. However, this obligation does not extend to information not specifically about the applicant or information provided for the purposes of the application or review. There is no obligation on the Tribunal to provide particulars of country information for comment under s 424A(1) by virtue of the exception set out in s 424A(3)(a) of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572. The primary information referred to in the Tribunal’s decision record is a letter by Pope Benedict XVI and two country reports on religious freedom and practice in China. These clearly fall within the exception provided by s 424A(3)(a) of the Act and this ground, therefore, is not made out.

    Ground 2

  20. As noted above, s 424A(3)(a) specifically excludes independent country information from the obligations set out in s 424A. Similarly, s 424A(3)(b) excludes information that the appellant gave for the purpose of the application for review. The information before the Tribunal consisted of the appellant’s protection visa application and application for review, the evidence given by the appellant during the hearing and the independent country information. This information clearly falls within the ambit of s 424A(3). As there was no other information before the Tribunal, it cannot be said that the Tribunal failed to comply with its obligations under s 424A. In my view, no jurisdictional error on this basis can be discerned.

    Ground 3

  21. The Tribunal identified with particularity all of the appellant’s claims and supporting material before the Tribunal.  It explored the appellant’s claims with her at the hearing.  It put to the appellant the nature of independent country information that did not support her claims.  Ultimately, the Tribunal rejected her claims on the basis that she had never been arrested, detained or questioned due to her practising Catholicism, and therefore did not face a residual or substantial risk of persecution if she returned to China and continued to practise Catholicism.  It is difficult to see what other questions it should have asked as this ground implies.  The ground is not made out. 

    Ground 4

  22. Section 91R(3) of the Act requires the decision-maker to disregard any conduct engaged in by the person in Australia unless:

    (b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

  23. The appellant submits that the Tribunal failed to take into account whether her conduct in Australia increased her risk of persecution upon return to China and/or failed to make a finding on whether her conduct should be disregarded in accordance with s 91R(3) of the Act.  The Tribunal did not disregard any conduct in accordance with s 91R(3).  Relevantly, the Tribunal stated that ‘the Tribunal accepts that the applicant attends a Catholic Church in Australia.  The Tribunal therefore accepts that if the applicant was to return to China she would continue to practise her Catholic religion’.  This finding did not adversely impact upon the appellant’s claims for a protection visa.  If anything, the fact that the Tribunal took into account her practice in Australia supported its finding that she was a genuine Catholic.  Ultimately, however, the Tribunal found she had never been arrested, detained, or questioned due to her practice of Catholicism.  It therefore found that if the appellant resumed her involvement in the underground Catholic Church ‘the probability that she would face serious harm by reason of her religious practices was remote rather than residual or substantial’.

  24. In my opinion, the approach of the Federal Magistrate and his Honour's conclusions were entirely correct.

    CONCLUSION

  25. The appeal will be dismissed.  The appellant is to pay the first respondent’s costs of the appeal, to be taxed if not agreed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:             6 August 2008

The Appellant appeared in person.
Counsel for the Respondents: P Reynolds
Solicitor for the Respondents: Clayton Utz
Date of Hearing: 5 August 2008
Date of Judgment: 6 August 2008
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