FEDERAL COURT OF AUSTRALIA SZHYG v Minister for Immigration & Multicultural Affairs [2006] FCA 1606 SZHYG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 814 OF 2006 LINDGREN J 13 NOVEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 814 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHYG Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LINDGREN J DATE OF ORDER: 13 NOVEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 814 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHYG Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LINDGREN J DATE: 13 NOVEMBER 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals against a judgment of the Federal Magistrates Court of Australia given on 12 April 2006 ([2006] FMCA 574). On that date that Court dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was made on 28 October 2005 and handed down on 22 November 2005. The Tribunal had affirmed a decision of a delegate of the first respondent ('the Minister') to refuse the grant of a protection visa to the appellant. 2 The appellant is a citizen of the People's Republic of China. The appellant claims to have a well-founded fear of persecution on the ground of religion as a member of an underground Christian church in China. The appellant attended a hearing held by the Tribunal and gave oral evidence with the assistance of a Mandarin interpreter. 3 The Tribunal did not believe that the appellant was or ever had been a Christian, or that he had ever been involved in any underground Christian activities. The Tribunal expressed itself in clear terms to the effect that it was satisfied that the appellant had fabricated his claims. The appellant was asked several questions by the Tribunal with a view to testing his claim to be a Christian, and, in particular, a member of an underground Christian church in China. The Tribunal stated: 'It was blatantly clear that the [appellant] knows very little about Christianity.' 4 The Tribunal accepted as 'plausible' that the appellant had attended church but did not accept that his attendance was 'in good faith and genuine'. In fact, the Tribunal said it was satisfied that the appellant had visited and entered a church shown in photographs that the appellant tendered before the Tribunal, for the purpose of being photographed in order to support his claims, adding: 'It is clear that he was posing'. 5 In his application for judicial review before the Federal Magistrate, the appellant raised two grounds: that there was 'an error of law ... constituting a jurisdictional error'; and that there was 'procedural error ... constituting an absence of natural justice'. The Federal Magistrate dealt with these claims by addressing the various paragraphs of particulars that were stated in the application. 6 The first particular was that the Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) ('the Act'). That section provides that the Tribunal must invite an applicant to appear before it to give evidence and to present arguments relating to the issues arising in relation to the decision under review. The appellant's complaint in this respect concerned the quality of the translation performed by the Mandarin interpreter. Before me today the appellant has again put this contention. As the Federal Magistrate observed, there was no evidence led by the appellant to support this ground. 7 I asked the appellant, however, whether there was a particular term that had been mistranslated and he said that the word "Protestant" was mistranslated. According to the Tribunal's reasons for decision, the Tribunal asked the appellant such questions as whether he was Catholic, Protestant or Orthodox, or which church he belonged to, and it is recorded that he replied that he was a 'Christian … just Christian'. 8 I asked the appellant a similar question on the hearing today. He gave the same answer. I assume that my question and his answer were correctly translated. Although the exchange between myself and the appellant did not take the form of sworn evidence on his part, the fact that he answered the question in the same way as he had done before the Tribunal, even though apparently he now knows about what he says was an erroneous translation before the Tribunal, suggests that there was no injustice done in the present respect. Be this as it may, there was no evidence before the Federal Magistrate to support the ground. For this reason alone, the Federal Magistrate was correct in finding the asserted ground of review not established. 9 The second particular was that the Tribunal failed to assess the appellant's religious knowledge properly and fairly. The Federal Magistrate rejected the appellant's complaint that the Tribunal had failed to: '…seek independent opinions regarding [the appellant's] religious knowledge from [third parties] such as priests in the local church in Australia where [he has] attended weekly worship.' The Federal Magistrate correctly observed that the Tribunal was not obliged to pursue such inquiries with a view to making out the appellant's case for him. 10 The third particular was that the Tribunal ignored important independent country information, and referred to three documents in particular. The Federal Magistrate pointed out that the Tribunal did refer to independent country information, and that if the appellant had wanted the Tribunal to take into account the particular independent country information to which he now referred, he should have tendered evidence of it before the Tribunal. 11 Finally, in the fourth particular, the appellant stated that the Tribunal had: (a) failed to properly determine his case including whether the harm feared amounted to persecution and whether the fear was 'well-founded'; (b) asked itself several wrong and irrelevant questions; (c) failed to identify and consider the relevant issues to be determined; and (d) incorrectly assessed the appellant's credibility. 12 The Federal Magistrate dealt with each of these complaints in ways that I need not recount. 13 In his notice of appeal to this Court the appellant sets out two grounds: 1. That the Federal Magistrate 'erred in law'. 2. That the Federal Magistrate 'was wrong in finding that [the Tribunal] acted properly in its findings'. 14 The appellant has given as 'particulars', the same particulars, mutatis mutandis, that he furnished in his application to the Federal Magistrates Court, and I can dispose of the appeal by addressing them. 1. Section 424A 15 The appellant claims that the Tribunal did not comply with s 424A but does not specify which particular information this ground relates to. 16 The reason for the Tribunal's decision was that it did not find the appellant to be a credible witness. This finding was not based upon any inconsistencies or omissions from his visa application, as might enliven s 424A. Rather, it was based upon the appellant's oral evidence, and, in particular, his inability to provide the Tribunal with anything more than basic details about Christianity. It was this that led the Tribunal to find that he had fabricated his claims. 17 I accept the Minister's submission that the appellant's oral evidence was provided by the appellant to the Tribunal for the purpose of his application to it, and is therefore within the exception to s 424A(1) contained in s 424A(3)(b) of the Act. 2. Section 425 18 The appellant claims that he was not given a proper opportunity to present his claims at the hearing because of deficiencies in the standard of interpretation. 19 I have expressed my view on this ground above. 3. Failure to assess properly the appellant's religious knowledge 20 The first particular of this ground complains of the standard of interpreting, which has already been addressed. The second particular is that the Tribunal failed to seek independent opinions about the appellant's religious knowledge. 21 As I have indicated above, the Tribunal was under no obligation to do so. 4. Failure to refer to independent country information 22 The appellant identified the same three particular documents that the Tribunal failed to consider. The Tribunal was not obliged to refer to any particular independent country information. 23 The Tribunal in this casedid refer to country information, although not the particular country information the appellant has identified before the Federal Magistrates Court, and now before this Court. 24 The Federal Magistrate was correct in stating that, if the appellant had wished the Tribunal to consider these particular items of country information, it was for him to provide them to Tribunal. 5. Other complaints 25 This ground again complains that the Tribunal: '(a) failed to properly determine my case including whether the harm feared amounted to persecution and whether that fear was "well founded"; (b) asked itself a number of wrong and irrelevant questions; (c) failed to identify and consider the relevant issues to be determined; (d) incorrectly assessed my credibility.' 26 At the hearing before the Federal Magistrate, the appellant was not able to provide meaningful further detail of these complaints. There was not shown to be any substance in them before his Honour, and there is not shown to be any substance in them today. 27 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 26 November 2006 The Appellant appeared in person Solicitor for the Respondents: Ms T Quinn of Phillips Fox Date of Hearing: 13 November 2006 Date of Judgment: 13 November 2006