SZHZI v Minister for Immigration & Multicultural Affairs [2006] FCA 1067

FEDERAL COURT OF AUSTRALIA

SZHZI v Minister for Immigration & Multicultural Affairs [2006] FCA 1067 SZHZI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 992 OF 2006

TRACEY J

9 August 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 992 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHZI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J

DATE OF ORDER: 9 AUGUST 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 992 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHZI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J

DATE: 9 August 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate of 4 May 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 31 October 2005 and handed down on 24 November 2005: see [2006] FMCA 662. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse grant of a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China. Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his membership of an Underground Christian Church. He claimed that the authorities regarded him as the founder and leader of a bible study group. He claimed to have been questioned by the Public Security Bureau ("PSB"), to have been arrested and mistreated in August 2000 for distributing Christian propaganda material, being interrogated six to seven times from October to November 2004 by the PSB, and that his family had been interrogated. 3 The Tribunal found that the appellant was not a witness of truth and that his claims were fabricated. Many aspects of the appellant's evidence were problematic. The appellant was hesitant and rehearsed, with the evidence being indirect, vague, and brief. It appeared that the appellant was not speaking based on personal experience. The Tribunal also identified internal contradictions in the evidence and consequently preferred independent country information to evidence given by the appellant. 4 Tribunal concluded that the appellant did not have a well-founded fear of persecution in China for reasons of religion or any other Convention ground and affirmed the decision not to grant a protection visa. 5 Before the Federal Magistrate the appellant claimed that the Tribunal made a jurisdictional error and that there was procedural error in the Tribunal's decision which amounted to a denial of natural justice. Under the heading "Particulars" the appellant asserted that: The Tribunal identified a wrong issue; ignored relevant material; depended on irrelevant material; made an erroneous finding which related to the fact that ambiguities arose from the various meanings of the word "Church" in Chinese which caused the appellant to misinterpret the Tribunal's questions; that the Tribunal confused TPSM with TSPM; that the actual situation for churches in China was different from the official situation; and that the Tribunal used the wrong test to assess credibility. 6 As the appellant filed an application for an order that the respondents show cause why a remedy should not be granted, the Federal Magistrate, noted that the consequence of making a show cause order pursuant to r 44.12(1) (b) of the Federal Magistrates Court Rules 2001 (Cth) is to place upon the Minister a burden of active participation in the judicial review process from that point and no other consequence. 7 The Federal Magistrate then turned to the appellant's grounds of appeal. His Honour noted that the appellant had not filed a transcript of the Tribunal hearing and found that the record of the Tribunal proceeding in the book of relevant documents gave no indication of any interpretation problems. Although the appellant's personality and difficulty in communication led the Federal Magistrate to be cautious about an adverse credibility finding by the Tribunal, this did not establish any jurisdictional error. 8 The Federal Magistrate considered the appellant's claims regarding the religious questioning by the Tribunal. His Honour noted that the testing of the appellant's religious beliefs was in part questionable, but found that the Tribunal was entitled to test the appellant's belief as well as it could and that in any event, the appellant's responses did only indicate a superficial understanding of Christian beliefs. 9 In relation to the appellant's remaining grounds, the Federal Magistrate found that the adverse credibility findings were open to the Tribunal on the material before it; that some of the grounds were claims for merits review; that an error of fact was not necessarily a jurisdictional error; that the Tribunal was able to utilise and give weight to the independent country information in a manner that it saw fit; that there was no duty on the Tribunal to inquire; that the testing of credibility was the exclusive function of the Tribunal; and that an error in interpretation did not necessarily lead to jurisdictional error. The Federal Magistrate found no jurisdictional error in the Tribunal's decision and dismissed the application. 10 The notice of appeal contended that the Federal Magistrate had erred in law and was wrong in finding that the Tribunal had acted properly on its findings. The appellant restated the same particulars which he had relied on before the Federal Magistrate except for particulars relating to credibility. The appellant, in addition, claimed that: the Federal Magistrate failed to consider evidence that the Tribunal failed to comply with s 424A (1) of the Migration Act 1958 (Cth) ("the Act"); that the Tribunal failed to provide the appellant with an opportunity to comment on information, including independent country information; and that the Federal Magistrate failed to consider evidence that the Tribunal failed to comply with s 425 of the Act. 11 At the hearing this afternoon the appellant appeared in person. He was assisted by an interpreter. I invited the appellant to explain certain aspects of his notice of appeal which I had difficulty understanding. Although he told me that the document had been translated for him before he signed it he was not its author and it was evident that he had little, if any, understanding of what it contained. I was left to do the best I could in determining the appeal on the basis of the material collected in the appeal book and the Minister's written submissions. 12 I have carefully examined the material and am unable to detect any error of law in the Federal Magistrate's reasons. The Tribunal did not accept the appellant as being a credible witness. It explained its reasons for its scepticism. It was not satisfied that the appellant was a person who was entitled to a protection visa. Before the Federal Magistrate the appellant relied heavily on the submission that important parts of his evidence at the Tribunal hearing had not correctly been interpreted. Despite being invited to do so he failed to produce to the Federal Magistrate a transcript or any other evidence to support his claim. 13 In the absence of such evidence this aspect of his case was bound to fail. The decision of the Federal Magistrate was plainly correct for the reasons which he gave. No error has been demonstrated. The appeal will be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.