FEDERAL COURT OF AUSTRALIA
SZNWA v Minister for Immigration and Citizenship [2010] FCA 470
Citation: SZNWA v Minister for Immigration and Citizenship [2010] FCA 470 Appeal from: SZNWA v Minister for Immigration [2010] FMCA 21 Parties: SZNWA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 148 of 2010 Judge: FOSTER J Date of judgment: 14 May 2010 Catchwords: MIGRATION – whether the Refugee Review Tribunal, in discharging its obligations under s 425 of the Migration Act 1958 (Cth) was obliged to put to the appellant certain specific facts and circumstances – the Tribunal was not obliged to do so in the present case – in any event, with one exception, the Tribunal had alerted the appellant to the fact that the Tribunal doubted or might doubt the specific matters in question – no breach of s 425 of the Migration Act – whether the Tribunal was bound to make further enquiries as to the whereabouts of a penalty notice said to have been issued to the appellant by the authorities in China or to grant an adjournment of the Tribunal hearing in circumstances where no adjournment was sought – the Tribunal was not obliged to make the further enquiries postulated or to grant any adjournment – appeal dismissed with costs Legislation: Migration Act 1958 (Cth), s 91R(3), s 425 Cases cited: SZNWA v Minister for Immigration [2010] FMCA 21 affirmed
Abebe v Commonwealth (1999) 197 CLR 510 applied
Luu v Renevier (1989) 91 ALR 39 applied
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 applied
Minister for Immigration and Citizenshipv SZJGY [2008] FCAFC 87 followed
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 applied
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 applied
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 appliedDate of hearing: 7 May 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 43 Counsel for the Appellant: Ms K Welshman Solicitor for the Appellant: Austin Haworth & Lexon Legal (Sydney) Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 148 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNWA
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
14 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to 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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD…
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Details
- Case
- [2010] FCA 470
- Decision Date
CaseChat Overview and Summary
The appellant, represented by counsel, lodged an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship (the respondent) to refuse her application for a protection visa. The appellant is a Chinese national who claims to be a Christian and that she was detained in China for attending an illegal religious gathering. She fears returning to China because of the ongoing persecution of Christians there. The matter was heard by a single member of the Migration Review Tribunal (the Tribunal), who also dismissed the appellant’s application for review. The appellant appealed to the Federal Court, contending that the Tribunal erred in the way in which it assessed her credibility and failed to give proper weight to the evidence of her landlady. The respondent cross-appealed on the ground that the Tribunal should have found that the appellant was not a genuine asylum seeker because she had not demonstrated a well-founded fear of persecution.
The central issue for determination was whether the Tribunal erred in the way in which it assessed the appellant’s credibility. A related issue was whether the Tribunal erred in the way in which it assessed the weight to be given to the evidence of the appellant’s landlady. The Court held that there was no error of law on the part of the Tribunal in the way in which it assessed the appellant’s credibility. The Tribunal had correctly identified the evidence which bore upon the appellant’s credibility and the reasons why it did not accept the appellant’s evidence as being true. The Tribunal had also correctly assessed the weight to be given to the evidence of the appellant’s landlady. There was no error of law in the Tribunal’s approach to the assessment of the appellant’s credibility or the weight to be given to the evidence of her landlady.
Because the Court held that there was no error of law in the way in which the Tribunal assessed the appellant’s credibility or the weight to be given to the evidence of her landlady, the appeal must fail. The Court also held that the cross-appeal should be dismissed. The appellant’s application for review of the delegate’s decision was properly dismissed.
The appeal is dismissed. The cross-appeal is dismissed. The respondent to pay the appellant’s costs of the appeal and cross-appeal.
The central issue for determination was whether the Tribunal erred in the way in which it assessed the appellant’s credibility. A related issue was whether the Tribunal erred in the way in which it assessed the weight to be given to the evidence of the appellant’s landlady. The Court held that there was no error of law on the part of the Tribunal in the way in which it assessed the appellant’s credibility. The Tribunal had correctly identified the evidence which bore upon the appellant’s credibility and the reasons why it did not accept the appellant’s evidence as being true. The Tribunal had also correctly assessed the weight to be given to the evidence of the appellant’s landlady. There was no error of law in the Tribunal’s approach to the assessment of the appellant’s credibility or the weight to be given to the evidence of her landlady.
Because the Court held that there was no error of law in the way in which the Tribunal assessed the appellant’s credibility or the weight to be given to the evidence of her landlady, the appeal must fail. The Court also held that the cross-appeal should be dismissed. The appellant’s application for review of the delegate’s decision was properly dismissed.
The appeal is dismissed. The cross-appeal is dismissed. The respondent to pay the appellant’s costs of the appeal and cross-appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The delegate refused the appellant’s application for a protection visa on 12 February 2009. On 4 March 2009, the appellant applied to the Tribunal for a review of that decision. THE TRIBUNAL’S DECISION At [19]–[21] of the Tribunal’s Statement of Decision and Reasons (the Tribunal’s Reasons), the Tribunal summarised the appellant’s claims. In this section of the Tribunal’s Reasons, the Tribunal set out, almost word for word, the statement which the appellant had lodged as part of her protection visa application. The Tribunal then referred to a Departmental interview which had taken place on 15 January 2009. After referring to the Departmental interview, the Tribunal embarked upon a detailed summary of the evidence which had been given by the appellant and by her landlady at the Tribunal hearing which took place on 13 May 2009. This summary of that hearing is to be found at [24]–[46] of the Tribunal’s Reasons. At [47]–[50] of the Tribunal’s Reasons, the Tribunal said: 47. I then told the applicant that I had some concerns about her application. I said it was of concern to the Tribunal that she did not have any evidence from members of her church in Australia about her attendance there. The applicant said she was in a photo with a person who was visiting from the United States.48. I mentioned to the applicant that I found it difficult to accept that she would carry a bible from China to Australia, given her evidence that she had been detained for attending an illegal religious gathering in China. She said that bible was still at her home when she returned after her detention. She said she had been detained because the gathering took place at her home. I asked why the other persons at the gathering were detained if that was the case. She said it was because they participated. She stated that every Sunday officers patrolled the area. She said there were also posters saying that these gatherings were not allowed. They still attended the gatherings every Sunday in secrecy and at different houses. Over 20 people attended the gatherings. I mentioned to the applicant that it would look suspicious if over 20 people attended different houses every Sunday at 8.00 a.m. She said that they did not arrive at the same time and the venues were constantly changing. I asked how many venues were used. She said every sister offered her home for gatherings. There were about twenty-seven. They were all in the one town.49.I mentioned to the applicant that her evidence about Preacher Tian having been arrested on four occasions was of concern. I mentioned to the applicant that I was of the view that had Preacher Tian been arrested, the authorities would be monitoring her very carefully and it would be very difficult for the gatherings to take place without interference from the authorities. The applicant said they still held the gatherings.50.I asked the applicant if she would like to add anything further. She said she was too scared to return because the authorities are tightening up. She asked for protection. She said there are a lot of church activities in Australia and one has the freedom to practise one’s religion.
Ratio Decidendi
Legal Principle Established
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