SZMFU v Minister for Immigration and Citizenship

[2009] FCA 174

FEDERAL COURT OF AUSTRALIA

SZMFU v Minister for Immigration and Citizenship [2009] FCA 174

SZMFU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1851 of 2008

SIOPIS J
3 MARCH 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1851 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMFU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	3 MARCH 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is dismissed.

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 1851 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMFU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	3 MARCH 2009
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 7 November 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 April 2008.  The Tribunal had affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of China who arrived in Australia on 24 October 2007.

3. On 24 October 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 3 January 2008.  On 14 January 2008, the appellant applied to the Tribunal for a review of that decision.

4. Before the Tribunal the appellant claimed to have a well‑founded fear of persecution because of his religious belief and his involvement in underground church activities.  He claimed that he had been arrested and detained for a year because of his activities in an underground church in China.  He claimed to be a member of the Local Church, a Christian church, which is known in China as the “Shouters”.

   THE TRIBUNAL DECISION

5. The Tribunal was of the view that the appellant was not a witness of truth and it did not accept that he was a member of the Local Church in China or an underground Christian group in China.  It did not accept that he attended Local Church gatherings in China or gatherings at an underground church or that he was detained and beaten for being a member of the Local Church or an underground church.  Further, the Tribunal did not accept that the appellant was a Christian.  In making these findings, the Tribunal noted that the information provided by the appellant about the Local Church’s practices and beliefs was inconsistent with independent country information.  The Tribunal relied on country information regarding the Local Church’s practices and beliefs from a 2004 PhD dissertation by Jason Kindopp of George Washington University.

6. The Tribunal also noted that the appellant had limited knowledge of the religious beliefs and practices of the Local Church and of practices central to Christian belief.  The Tribunal found the appellant’s overall knowledge about generally known facts relating to the Local Church and Christianity to be incommensurate with his claim that he had been a practising Christian and a member of the Local Church for many years.

7. The Tribunal was also of the view that if the appellant feared persecution because of his religious belief he would have left China as soon as he could, rather than waiting over four and a half years to leave the country.

8. Finally, the Tribunal found that the appellant’s religious practice in Australia was for the sole purpose of strengthening his claims to be a refugee and, therefore, disregarded his conduct in Australia pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act).

9. The Tribunal was not satisfied that the appellant had a well‑founded fear of persecution in China.

   THE FEDERAL MAGISTRATES COURT

10. On 12 May 2008, the appellant sought judicial review in the Federal Magistrates Court.  He filed a further document on 1 September 2008.  The appellant claimed that the Tribunal:

    (a)failed to act judicially and afford procedural fairness;

    (b)failed to comply with s 424A of the Act;

    (c)misunderstood and failed to apply the correct test in order to be satisfied as to whether he had a well‑founded fear of persecution for a Convention reason on the grounds of religion;

    (d)did not take into account certain relevant considerations or integers central to his claims;

    (e)failed to consider his claims; and

    (f)failed to investigate his claims.

11. The appellant also complained that the Tribunal was preoccupied and did not consider his genuine claims fairly; and did not consider the new information about his persecution, and did not give him a chance to explain it.

12. As to the first ground, the Federal Magistrate observed that no particulars of the claim had been given; and found that there was no evidence that there had been any failure to accord the appellant procedural fairness, nor that the Tribunal had failed to comply with the requirements of s 425 of the Act.

13. As to the second ground, the Federal Magistrate found that there was no information which the Tribunal was required to put to the appellant under s 424A of the Act.  This was because the information on which the Tribunal had relied was either information provided by the appellant himself or was independent country information.

14. In any event, observed the Federal Magistrate, the Tribunal appeared to have, unnecessarily, purported to undertake the process of disclosure set out in s 424AA of the Act.

15. As to the third ground, the Federal Magistrate referred to the fact that the Tribunal had set out at some length the test for determining whether a person was a refugee and had properly applied the test.

16. As to the fourth ground, the Federal Magistrate found that a fair reading of the Tribunal’s decision indicated that the Tribunal had taken into account the integers central to the appellant’s claims.  The Federal Magistrate also noted that the particulars relied upon in support of that ground were in effect nothing more than a complaint about the use of the independent country information by the Tribunal.  This did not indicate jurisdictional error.

17. As to the fifth ground, the Federal Magistrate observed that a fair reading of the Tribunal’s decision showed that the Tribunal had considered the claims made by the appellant.  The Federal Magistrate noted that the appellant had not provided any particulars in support of this ground.

18. As to the sixth ground, the Federal Magistrate said that it was well established that there is no obligation on the Tribunal to conduct further inquiries or to make the appellant’s case for him.

19. The Federal Magistrate also dealt with a number of matters under the heading of “Particulars”.

20. First, the Federal Magistrate dealt with a complaint which he construed as the complaint that there had been a defect in the manner in which the interpreter had interpreted the proceedings before the Tribunal.  The Federal Magistrate said that the appellant had failed to provide evidence of the defect alleged.  The Federal Magistrate went on to comment that some misunderstanding as to the appellant’s address in China was “not a matter upon which the Tribunal’s decision turned, and was certainly not information that formed a [sic] reason or part of the reason for the Tribunal affirming the decision under review”.

21. Secondly, the Federal Magistrate found that there was no jurisdictional error arising from some confusion in the questioning of the appellant before the Tribunal.  If there was some confusion in the questioning, said the Federal Magistrate, then such error would be no more than an error of fact and not one giving rise to jurisdictional error.

22. Thirdly, the Federal Magistrate stated that there was no evidence that the Tribunal was preoccupied, that the Tribunal member’s mind was elsewhere, that the Tribunal did not consider the appellant’s genuine claim fairly, or that there was a reasonable apprehension of bias.

23. Fourthly, in response to the appellant’s complaint that the Tribunal had not considered the new information provided by the appellant and given him a chance to explain it, the Federal Magistrate found that the appellant did not provide any new information.  The Federal Magistrate noted that the Tribunal had during the hearing provided the appellant with an opportunity to provide further information or make comments about matters that caused the Tribunal concern during the hearing.  In response, the appellant had said that he would respond in writing.  However, the appellant did not thereafter respond in writing to the Tribunal.

24. The Federal Magistrate, having found no jurisdictional error, dismissed the application.

    THE APPEAL

25. On 28 November 2008, the appellant filed a notice of appeal in which he contended that the Federal Magistrate erred in law and was “wrong in finding that [the Tribunal] acted properly in its findings”.

26. The appellant then alleged by way of particulars that the Tribunal had erred in the following respects:

    (a)The Tribunal failed to consider his claims fairly and properly and its decision included a reasonable apprehension of bias (para 1 of the particulars);

    (b)The Tribunal relied on unreliable country information and gave too much weight to such information.  The appellant’s complaint was that most of the members of the Local Church disagreed with, and did not accept, the views expressed about the Local Church by Dr Jason Kindopp (para 2 and para 3 of the particulars);

    (c)The Tribunal failed to give the appellant an opportunity to comment on the information from Dr Kindopp and, therefore, did not comply with s 424A or s 424AA (para 4 of the particulars);

    (d)The Tribunal failed to comply with s 425 of the Act by not putting adverse material to the appellant during the hearing (para 5 of the particulars); and

    (e)The Tribunal failed to assess the application fairly and properly (para 6 of the particulars).

27. As to the first complaint in the particulars, in my view, the Federal Magistrate did not err in rejecting the appellant’s contention that the Tribunal did not consider his claim fairly and that there was a reasonable apprehension of bias.  There was, as the Federal Magistrate held, no evidence of the allegations made by the appellant.  The Tribunal’s decision does not manifest any basis on which a finding of reasonable apprehension of bias could possibly be made.  Nor did the appellant point to any other material upon which such a conclusion could possibly be drawn.  Further, a perusal of the Tribunal’s decision shows that the Tribunal did put to the appellant its concerns regarding the appellant’s case and his evidence.  Accordingly, I dismiss the first ground of complaint particularised by the appellant.

28. As to the second ground of complaint, the Federal Magistrate did not err in finding that the appellant’s complaint about the use of independent country information did not give rise to a jurisdictional error.  The choice and interpretation of country information and the weight given to it is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]‑[13]). Accordingly, I dismiss the complaints set out in para 2 and para 3 of the particulars to the appellant’s notice of appeal.

29. As to the complaint referred to in para 4 of the particulars of the notice of appeal, in my view, the Federal Magistrate did not err in finding that there was no breach of s 424A of the Act in relation to the information concerning the beliefs and practices of the Local Church provided by Dr Jason Kindopp of George Washington University.  Contrary to the appellant’s contention, this information was not information which related specifically to the appellant.  It was country information which fell within the ambit of s 424A(3)(a).  In any event, during the course of the hearing it is apparent that the Tribunal gave the appellant an opportunity to comment upon the country information (see pp 73‑75 of the appeal book).  Accordingly, I would dismiss the complaint made in para 4 of the particulars to the appellant’s notice of appeal.

30. As to para 5 of the particulars of the appellant’s notice of appeal, as previously mentioned, the inconsistencies between the appellant’s claim and the country information concerning the Local Church, and other concerns the Tribunal had, were discussed with the appellant at the Tribunal hearing.  The decision record shows that the Tribunal gave the appellant three weeks within which to respond in writing to the matters discussed with him.  However, no response was received from the appellant.  Accordingly, the complaint made in para 5 of the particulars to the appellant’s notice of appeal is dismissed.

31. Paragraph 6 of the particulars to the appellant’s notice of appeal does not add to the allegations and contentions made in the earlier paragraphs of the particulars.  Accordingly, the complaint made in para 6 also fails.

32. The appeal is dismissed.

I certify that the preceding thirty‑two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        3 March 2009

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	20 February 2009
Date of Judgment:	3 March 2009