SZHYY v Minister for Immigration & Citizenship [2007] FCA 196

FEDERAL COURT OF AUSTRALIA

SZHYY v Minister for Immigration & Citizenship [2007] FCA 196 SZHYY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1703 OF 2006

DOWSETT J

20 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1703 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHYY

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J DATE OF ORDER: 20 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed; 2. The name of the first respondent be amended to "Minister for Immigration and Citizenship"; and 3. 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 1703 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHYY

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: DOWSETT J

DATE: 20 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a federal magistrate exercising jurisdiction conferred by s 476 of the Migration Act 1958 (Cth) (the "Act"). The application sought review of a decision of the second respondent (the "Tribunal") dated 31 October 2005 and handed down on 24 November 2005. The applicants in the Tribunal were the present appellant and his wife. However only the appellant applied to the Federal Magistrates Court. 2 The appellant is a citizen of the People's Republic of China and arrived in Australia on 2 May 2005. On 11 May 2005 he applied for a Protection (Class XA) Visa. On 10 August 2005 a delegate of the first respondent (the "Minister") declined the application and on 9 September 2005, the appellant applied to the Tribunal for review of that decision. 3 The appellant's claim to be a person to whom Australia owes protection obligations was based upon his claim to be a practising Christian. However he failed to identify any particular denomination to which he adhered, save for saying that he was not a Catholic. He claimed to have been active in the distribution of Bibles and otherwise in church affairs, but appears not to have given great detail of his involvement in Christian activity in China. He claimed to have left China for fear of persecution, but in the course of proceedings in the Tribunal, he indicated that he had come to Australia because he had heard that it was a good place and because his family owed a lot of money. His family had encouraged him to come to Australia in order to repay its debts. These statements were apparently interspersed with claims to fear persecution for reason of his religion. 4 In light of these claims the Tribunal concluded as follows: 'In my view his claims to be a Christian and to have left China in fear of arrest for that reason are implausible. All his evidence on these matters was expressed in very vague terms. He did not know to what denomination of Christianity he belonged, he did not appear to know the name of the church he claimed to attend and had not attended church in Sydney despite having the opportunity to do so. He was unable to explain why the authorities might have decided to raid his home in particular and was unable to give any description (such as name or place of publication) of the religious materials at his home. He appeared to be unfamiliar with the difference between registered and unregistered churches in China and expressed no objection to attending a registered church if he were returned to China. Nothing in his evidence indicated that he had had a long-standing involvement with an unregistered church in China. Further, his claim to have been in hiding for over a month before leaving China was not consistent with his earlier oral evidence that he was living at his home until May 2005 when he left the country. Finally, his ability to leave China using his own passport without being questioned by the authorities on departure is indicative of a lack of interest in him by them. For the above reasons I do not consider him truthful and do not accept that [he] was a member of an underground church in China or that he or his wife were suspected of being members of such a church. I do not accept that they were of any adverse interest to the authorities for the reason of religion at the time they left China. The Tribunal is not satisfied on the evidence before it that the applicants have a well-founded fear of persecution within the meaning of the Convention.' 5 The Tribunal affirmed the decision to refuse a protection visa. 6 The application to the Federal Magistrates Court identified a number of grounds for review. The first was an alleged failure to comply with s 359A of the Act. However, before the magistrate, this was treated as an allegation that the Tribunal had failed to comply with s 424A. It was also alleged that the Tribunal had failed to afford procedural fairness to the appellant. This allegation had three aspects, the first being, that the Tribunal had raised irrelevant questions and misled the appellant. This seems to have been a reference to the line of questioning which led the appellant to say that he had come to Australia to make money to repay a loan. The second aspect related to the use made by the Tribunal of information available to it concerning religious organisations and government regulation of religious organisations in Guangdong Province. The third aspect related to information concerning persecution of Christians in Guangdong Province. 7 The magistrate had difficulty in identifying the information which, in the appellant's submission, ought to have been dealt with pursuant to s 424A. He identified two possible categories. The first was country information, that is information derived from various sources concerning conditions in China and, in particular, conditions concerning Christians in China. The magistrate considered that this information was not affected by the requirements of s 424A(1) because it was excluded from their operation by subs 424A(3). The second category was the appellant's passport. The Tribunal to some extent relied upon the fact that the appellant had been able to leave China on his own passport. It may be that this was based upon information derived from the passport itself. However, the magistrate noted that the Tribunal had asked the appellant to bring his passport with him to the hearing. There was evidence before the magistrate that the passport was returned to the appellant at the end of the hearing in the Tribunal. In those circumstances, the magistrate inferred that the passport was provided by the appellant to the Tribunal for the purposes of the hearing. 8 In the course of the hearing before the magistrate the appellant asserted, apparently for the first time, that the passport was not his passport. He told me today that he did not tell the Tribunal that the passport was not his. It seems to me that it does not matter whether the passport was his or not. He led the Tribunal to believe that it was his, and it seems that he used it to enter Australia and, presumably, to leave China. He cannot now complain about the fact that the Tribunal treated his evidence at face value. Before me he complained that the magistrate had not inquired as to the truth or otherwise of his assertion that the passport was not his. However, given the way in which the matter was conducted before the Tribunal, and given the limited role which the magistrate had to fulfil, there was no error in this regard. 9 As to the second ground for review before the magistrate, namely denial of procedural fairness, the federal magistrate considered that pursuant to s 422B of the Act, Div 4 of Pt 7 provided an exhaustive statement of the requirements of natural justice in connection with the hearing. This appears to be correct. In any event, the magistrate considered that the specific criticisms of the conduct of the Tribunal were not justified. No attempt has been made before me to demonstrate that this conclusion was incorrect. 10 There will be an order that the name of the first respondent be amended to "Minister for Immigration and Citizenship". The appeal is dismissed. The appellant is to pay the first respondent's costs of the appeal. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.