SZMHB v Minister for Immigration and Citizenship

[2008] FCA 1702

FEDERAL COURT OF AUSTRALIA

SZMHB v Minister for Immigration & Citizenship [2008] FCA 1702

SZMHB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1263 of 2008

EDMONDS J
18 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1263 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMHB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	18 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

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 1263 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMHB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	18 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court, SZMHB v Minister for Immigration & Anor [2008] FMCA 1062, dismissing an application for constitutional writs under the Migration Act 1958 (Cth) (‘the Act’) in respect of a decision of the second respondent (‘the Tribunal’) made on 14 April 2008.

   BACKGROUND

2. The appellant is a citizen of China who arrived in Australia on 11 September 2007.

3. On 4 October 2007, the Department of Immigration and Citizenship (‘the Department’) received an application for a protection visa from the appellant.

4. The appellant claimed to fear persecution in China by reason of her religious beliefs.  She claimed to be a Christian.  As ultimately presented to the Tribunal, the appellant claimed to have started to believe in God in August 2004 after a successful exorcism in her village, and that while she had only attended church once, she regularly gathered with others at the house of another Christian believer in her village.  The appellant claimed to have been detained overnight by Chinese authorities in 2005 after such a gathering.  She also claimed to have attended a registered church in 1985 during the Christmas period and was also detained overnight.  At the Tribunal hearing, the appellant also claimed to have read the bible in 1984.

5. The appellant claimed to have attended a Christian church in Sydney.  At the Tribunal hearing, the appellant provided no corroborative evidence in relation to her practice of Christianity in Australia.  However, after the hearing, the appellant forwarded by letter dated 18 March 2008, photographs to the Tribunal that purported to show her at a church in Sydney.

6. On 11 December 2007, a delegate of the first respondent (‘the Minister’) refused the application for a protection visa.

7. On 9 January 2008, the Tribunal received an application for review of the delegate’s decision.  On 27 February 2008, the appellant attended an oral hearing before the Tribunal.  On 14 April 2008, the Tribunal made a decision affirming the decision of the delegate.  An application for judicial review was filed in the Federal Magistrates Court on 19 May 2008.  On 22 July 2008, the application was dismissed.

8. On 29 July 2008, the appellant filed a Notice of Appeal in this Court.

   THE TRIBUNAL DECISION

9. The Tribunal set out the written and oral claims of the appellant in detail.  The Tribunal also referred to and extracted independent country information in connection with the treatment by Chinese authorities of Christians and the Chinese government’s one child policy.

10. The Tribunal found that ‘the [appellant] is not a credible witness, and [the appellant] has fabricated her claims in order to support her application for a protection visa’ (at 19 of its reasons).

11. In arriving at this finding, the Tribunal set out seven ‘concerns’ in relation to the appellant’s evidence.  Those concerns included the fact that the appellant had first provided to the Department a different motive for coming to Australia (i.e. to make money in Australia), that the appellant had raised new claims at the Tribunal hearing that had not been raised in her protection visa application, that the appellant had a superficial knowledge of Christianity, and that she gave inconsistent evidence about her practise of Christianity and attendance at church services prior to 2004.

12. The Tribunal also referred to the appellant’s conduct in Australia and noted the appellant’s claims to have attended church in Australia and the subsequent evidence provided by her after the hearing in order to establish such attendance.  The Tribunal noted:

    There is nothing in the material submitted by [the appellant] which indicates the name of the church, its denomination or any contact details.  Nonetheless the Tribunal accepts that [the appellant] has attended a Christian church in Sydney.  However given her superficial knowledge of Christianity, the lack of supporting documentation from the church in Sydney which she claims to attend, and the Tribunal’s above finding that it does not consider her to be a credible witness, the Tribunal is not satisfied that she has attended this Church other than to strengthen her application to be a refugee.  Accordingly, the Tribunal considers that s 91R(3) is applicable and disregards this conduct in Australia.

13. The Tribunal concluded that the appellant had not suffered any harm for reasons of her religious beliefs, or that she would suffer any harm by reason of her membership of a particular social group or any other Convention reason in the reasonably foreseeable future.

    THE DECISION OF THE FEDERAL MAGISTRATES COURT

14. The grounds in the judicial review application before the Federal Magistrates Court amounted to no more than bare assertions of jurisdictional error.

15. Scarlett FM addressed those grounds at [28] – [33]. His Honour noted that no particulars had been provided but that the Tribunal considered the appellant’s claims as set out in the visa application. His Honour found that there had been no breach of s 425 of the Act and that the procedure adopted by the Tribunal under s 424AA had been complied with. His Honour concluded that no jurisdictional error had been established.

16. It is noted that the decision of Scarlett FM refers to the appellant having claimed in the court below that she could not understand the Mandarin interpreter and that she only spoke a local dialect.  His Honour found that the appellant had consistently requested an interpreter in Mandarin and had attended the Tribunal hearing with the assistance of an interpreter in that language/dialect.  His Honour was disparaging of the appellant’s conduct in this regard.

    NOTICE OF APPEAL

17. The notice of appeal suffers from the same difficulties as the grounds of judicial review agitated in the court below.  The grounds of appeal do nothing more than allege various types of jurisdictional error, and are not directed to the decision of Scarlett FM.

18. In the absence of further particulars, it is not possible to address the grounds of appeal in any meaningful way.

    HEARING ON APPEAL

19. The appellant, through an interpreter, addressed the Court on the hearing of her appeal.  Her submissions roamed over everything from her inability to obtain a Medicare card to the difficulties she faced, by reason of her health, in obtaining employment, either casual or part-time.  In short, they were totally irrelevant.

    CONCLUSION

20. There is no appellable error in the reasoning of the court below.

21. The appeal must be dismissed.  The appellant must pay the first respondent’s costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:
Dated:        18 November 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	12 November 2008
Date of Judgment:	18 November 2008