SZMCZ v Minister for Immigration and Citizenship
[2008] FCA 1641
•7 November 2008
FEDERAL COURT OF AUSTRALIA
SZMCZ v Minister for Immigration and Citizenship [2008] FCA 1641
SZMCZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1326 of 2008
BESANKO J
7 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1326 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMCZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
7 NOVEMBER 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 if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1326 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMCZ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE:
7 NOVEMBER 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from orders made by the Federal Magistrates Court of Australia. That court considered an application by the appellant for constitutional writs in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). On 13 August 2008 the Federal Magistrates Court ordered that the application be dismissed.
The facts
The appellant is a national of the People’s Republic of China (“China”), and she arrived in Australia on 8 September 2007. She applied for a Protection (Class XA) visa on 19 October 2007. A delegate of the Minister for Immigration and Citizenship refused her application on 7 December 2007.
The appellant claimed in her application for a protection visa that she came from Fujian Province in China and that she was once a leading member of a Christian church. She described the church as one of the underground churches established in China. She became interested in the church through a friend and, after a time, she began to attend the church on a regular basis. She then became very active in church activities and she, with another, set up a Bible study group and distributed what she called religious promotion materials. The Bible study group came to the attention of the authorities and the appellant was taken into custody and interrogated. She came to Australia to avoid further persecution by the authorities in China. Further details of the appellant’s claims and various events are described in the Tribunal’s reasons, but, in view of the issues on the appeal, it is not necessary for me to set them out.
On 24 December 2007 the appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal conducted a review and on 11 March 2008 it handed down its decision. The Tribunal affirmed the decision not to grant the appellant a protection visa.
On 7 April 2008 the appellant issued an application in the Federal Magistrates Court seeking constitutional writs in relation to the decision of the Tribunal. As I have said, on 13 August 2008 the Federal Magistrates Court made an order dismissing the application for constitutional writs.
In her appeal to this Court, the appellant raised two grounds. First, she contended that, contrary to s 91R(3) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal did not disregard conduct engaged in by her in Australia and that that was a jurisdictional error. Secondly, she contended that the Tribunal was biased and that, as a result, it did not consider her claims properly. Both these grounds were grounds of the appellant’s application for constitutional writs and both were rejected by the federal magistrate. The appellant complains of the federal magistrate’s decision to reject the two grounds.
Grounds of appeal
1. Alleged failure to apply s 91R(3) of the Act
It is necessary for me to set out some background to this ground of appeal.
The Tribunal member did not consider the appellant a credible witness. She said that the appellant was “often evasive and non-responsive to the Tribunal’s questions”. She said that there were “significant inconsistencies between the applicant’s written claims and her oral evidence …”. The Tribunal member noted in her reasons nine instances in which there was an inconsistency between the appellant’s written statement and her oral evidence. She said that she reached the conclusion that the appellant had been untruthful in her evidence and in her description of events in China. The Tribunal member rejected most, if not all, of the factual assertions made by the appellant. In the course of her reasons, the Tribunal member said:
The Tribunal has made these findings [the findings rejecting most, if not all, of the factual assertions made by the appellant] while acknowledging that the applicant started attending the Local Church in Sydney shortly after her arrival in Australia. The Tribunal finds that there is no real chance that the applicant will face persecution if she were to return to China now or in the reasonably foreseeable future due to her claimed religious involvement prior to her arrival in Australia.
The Tribunal member turned to consider the appellant’s conduct in Australia. She described that conduct and said that she accepted that the appellant had been attending the local church in Sydney since about September 2007. In the course of her reasons, the Tribunal member then said:
In light of the Tribunal’s findings about the applicant’s religious involvement in China and the applicant’s overall credibility as well as the Tribunal’s concerns about the applicant’s motivation in entering Australia, noted below, the Tribunal is not satisfied that the applicant has engaged in religious activities in Australia otherwise than for the purpose of strengthening her claims to be a refugee. The Tribunal disregards such conduct in accordance with s 91R(3).
The Tribunal member found that the appellant would not engage in religious activities if she were to return to China now or in the reasonably foreseeable future. She found that there was no real chance that the appellant would face persecution due to her religion if she were to return to China now or in the reasonably foreseeable future. After referring to some other matters not presently relevant, the Tribunal member concluded by saying that she was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention.
Section 91R(3) of the Act provides as follows:
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
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.
The Full Court of this Court gave detailed consideration to the effect of this subsection in SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451. The Court said (at 462 [22]) that the first step for the decision-maker is to make primary findings of fact as to what, if any, conduct the person has engaged in in Australia. If conduct has occurred then consideration must be given to the requirements of s 91R(3). If the person has not satisfied the decision-maker that he or she has engaged in the conduct in Australia otherwise than for the purpose of strengthening the person’s claim to be a refugee, then the decision-maker must disregard the person’s conduct in Australia. This means that the decision-maker cannot rely on conduct engaged in by the person in Australia as undermining the credibility of the person’s claim to have been involved in events or activities in that person’s country of origin (at 464 [27]), or for the purpose of concluding that there is no reason to believe that the person would be persecuted by reason of certain activities if he returned to his country of origin (at 464 [28]).
I note that the Court did not attempt to resolve all issues which might arise under s 91R(3) and, indeed, it specifically reserved two issues for further consideration (at 463 [25]-[26]).
Before the Federal Magistrates Court the appellant submitted that her conduct in Australia should not have been disregarded by the Tribunal. That argument was rejected by the federal magistrate and was not repeated on the appeal. In the alternative, the appellant submitted that the Tribunal had erred in taking her conduct in Australia into account in rejecting her claim for a protection visa. That argument was rejected by the federal magistrate. It was the principal argument put by the appellant on the appeal to this Court.
In my opinion, the federal magistrate was correct. I have read the Tribunal’s reasons carefully and there is nothing to suggest that the Tribunal member relied on the appellant’s conduct in Australia as undermining her credit in respect of her claims, or as leading to a conclusion that she would not be persecuted should she return to China.
In those circumstances, the first ground of appeal must be rejected.
2. Alleged bias and failure to consider the appellant’s claims
The federal magistrate noted that the appellant had not tendered a transcript of the hearing held by the Tribunal, although she had been given the opportunity to do that. The federal magistrate said that his impression from reading the Tribunal’s decision “is of a Tribunal being conscientious to assess whether the applicant’s claims were genuine or not”. The federal magistrate rejected the submission that the Tribunal failed to take into account the appellant’s educational and cultural background when assessing her credibility. He said that the reasons of the Tribunal indicate that the Tribunal member was well aware of the appellant’s educational and cultural background. I have read the Tribunal’s reasons, and I see no reason to interfere with the conclusions of the federal magistrate.
In those circumstances, the second ground of appeal must be rejected.
Conclusion
In my opinion, the appeal must be dismissed and the appellant must pay the first respondent’s costs of the appeal.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 7 November 2008
The Appellant appeared in person Solicitor for the First Respondent: Ms A Nanson of the Australian Government Solicitor
Date of Hearing: 5 November 2008 Date of Judgment: 7 November 2008
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