SZMGS v Minister for Immigration and Citizenship

[2009] FCA 168

FEDERAL COURT OF AUSTRALIA

SZMGS v Minister for Immigration & Citizenship [2009] FCA 168

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

SZMGS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1823 of 2008

MARSHALL J
27 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1823 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMGS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	27 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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 1823 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMGS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	27 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of a Federal Magistrate in which his application for review of a decision of the Refugee Review Tribunal was dismissed. The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa.

2. The appellant is a citizen of the Peoples’ Republic of China. He claimed to fear persecution if returned to China, in the reasonably foreseeable future, on account of his religion. The appellant said he belonged to an unauthorised or underground church. He claimed to be a Christian and to have been detained twice by Chinese officials because of his religion. The appellant is 21 years old and single.

   The Tribunal

3. The Tribunal rejected the appellant’s claim that he assumed another identity to leave China. It also considered his claim to be wanted by authorities in connection with membership of an unauthorised church to lack credibility. The Tribunal found that the appellant appropriated a false identity to confuse Australian immigration authorities and to take advantage of an unused Australian transit visa contained in the passport of the person whose identity he appropriated. The Tribunal also did not accept his explanation for being refused entry to Hong Kong on two occasions.

4. The Tribunal observed that the appellant only gave vague details about his church and noted the appellant’s comment that he had little time to be interested in church matters in China. The Tribunal rejected as “far fetched” the appellant’s claim that his local church community had a “bad record” with authorities as a result of a demonstration held some years ago.

5. The Tribunal considered that the appellant’s alleged involvement in an unauthorised church in China was fabricated by the appellant. The Tribunal did not accept that the appellant came to Australia to secure protection from persecution on account of his religion. It did not accept that he was a Christian in China or even a member of an authorised church. It noted that the appellant was not interested in Christianity when he lived in China and that his interest in Christianity is “out of step” with the position he held in China. The Tribunal was sceptical about the appellant’s involvement in a Christian Church in Sydney. It considered that that involvement was undertaken to strengthen his claim to be a refugee. It referred to and relied on s 91R(3) of the Migration Act 1958 (Cth) (“the Act”).

6. The Tribunal found that if the appellant returned to China he would not be interested in Christianity because he is not a genuine Christian. It was not satisfied that the appellant faced a real chance of persecution in China on account of his religion. It found that he did not have a well founded fear of persecution.

   The Court below

7. The Federal Magistrate held that:

   ·The appellant was afforded a real hearing opportunity before the Tribunal and that there was no evidence he sought or needed an opportunity to put further material before the Tribunal;

   ·The Tribunal’s decision turned on adverse credibility findings based upon the appellant’s own evidence;

   ·The Tribunal considered and rejected a claim alleged not to have been dealt with by it;

   ·Country information had no bearing on the Tribunal’s decision;

   ·S 424AA of the Act was not enlivened because nothing in information disclosed to the appellant was adverse on its face;

   ·The Tribunal did not breach s 91R(3) of the Act in disregarding religious observance conduct engaged in by the appellant in Sydney. This flowed from its finding that the appellant was not a genuine Christian;

   ·His Honour held that the Tribunal’s decision was free of jurisdictional error.

   Appeal Grounds

8. On appeal the appellant relied on three grounds:

   ·the Tribunal did not have regard to the most current country information available;

   ·the Tribunal failed to comply with s 424AA of the Act concerning inconsistencies in his evidence;

   ·the Tribunal disregarded his involvement in the church in Sydney.

   Consideration

9. At [11] in the reasons for judgment below, his Honour said:

   The applicant’s assertion that the Tribunal based its decision upon outdated country information raises no issue of jurisdictional error. I accept the Minister’s submission that it is for the Tribunal to place what weight it chooses upon country information. In any event, on my reading of the Tribunal decision, country information had no bearing on the outcome of the applicant’s application to the Tribunal.

   I agree, with respect, with that analysis. No appealable error arises on this ground. In any event, as counsel for the first respondent submitted, the appellant did not refer to any more recent country information which it wished the Tribunal to take into account

10. The s 424AA ground and the Sydney church issue are sufficiently referred to in the above consideration of what his Honour decided. It is sufficient to say that the Federal Magistrate correctly observed that the Tribunal had proper regard to s 91R(3) and that s 424AA was not engaged in the circumstances. That is because the appellant’s involvement in the Church in Sydney was found to be for the purpose of his refugee claim and because there was no information which the Tribunal had which was obviously against the interests of the appellant. Failure to accept the evidence of a refugee claimant does not, of itself, engage s 424AA.

11. In his oral submissions the appellant complained that the Tribunal did not give him an opportunity to put everything he wished to put to it. I pointed out that this issue was dealt with by his Honour and no ground of appeal was raised in respect of that issue. After the Court pointed that out, the appellant had no further submissions on the issue. Orders of the Federal Magistrate prior to the hearing of the application for judicial review made it clear that a party wishing to rely on the transcript of the Tribunal hearing should file a copy of that transcript. The appellant did not file a copy of the transcript. The Court below had no evidence on which to find a jurisdictional error concerning the manner of the Tribunal’s hearing.

12. The appeal is dismissed with costs.

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

Associate:

Dated:        27 February 2009

The Appellant appeared for himself.
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	25 February 2009
Date of Judgment:	27 February 2009