SZIPU v Minister for Immigration & Citizenship [2007] FCA 294

FEDERAL COURT OF AUSTRALIA

SZIPU v Minister for Immigration & Citizenship [2007] FCA 294 MIGRATION – consideration of the operation of s 424A(1) of the Migration Act 1958 (Cth) – consideration of a contention of bias – consideration of a contention that adverse credibility findings not supported on the evidence Decision Appeal dismissed with costs. Migration Act 1958 (Cth) Ex parte Durairajasinghan v Minister for Immigration and Multicultural Affairs (2000) 168 ALR 407 – cited and quoted W148/00A v Minister for Immigration and Multicultural Affairs (2000) 185 ALR 703 – cited and quoted Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 - cited SZIPU v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD2499 of 2006

GREENWOOD J

28 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD2499 of 2006

BETWEEN: SZIPU

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

AND REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 28 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The title of the first respondent be amended to 'Minister for Immigration and Citizenship'. 2. The Refugee Review Tribunal be joined as a second respondent in the proceedings. 3. The appeal is 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

QUEENSLAND DISTRICT REGISTRY NSD2499 of 2006

BETWEEN: SZIPU

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

AND REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GREENWOOD J

DATE: 28 FEBRUARY 2007

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT 1 I have before me an appeal from the judgment and orders of Federal Magistrate McInnis of 4 December 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') by which the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant. Two preliminary matters might be dealt with conveniently now and they are that: an application has been made for leave, consistent with authority, to join the Refugee Review Tribunal as a second respondent in the proceedings and I give that leave; secondly, leave has been sought to amend the title of the first respondent from Minister for Immigration and Multicultural Affairs to Minister for Immigration and Citizenship' and I give leave to make that change. 2 Now, in the proceedings, I should say that the appellant appears before this Court unrepresented but with the assistance of an interpreter. Because the appellant is unrepresented and is assisted by an interpreter, I propose to try and express clearly and simply the findings of this Court in relation to the central matters but because the appellant has contended that bias occurred in the conduct of the proceedings before the Refugee Review Tribunal, I propose to reflect in these observations some comments about the conduct of the Tribunal and particularly the conduct of the hearing. 3 In the application before the Federal Magistrates Court, the grounds of the application recited by the appellant are these: '(1) jurisdictional error has been made; (2) procedural fairness has been denied.' 4 (See Tab 1 of the Appeal Book). 5 In support of that application, the appellant filed an affidavit on 4 February 2006 in which the appellant stated that she had arrived in Australia on 16 November 2005 having been born in the People's Republic of China. The appellant said that she refused to go back to China as China, 'has no religious freedom'. The appellant further said: '2. I am a Christian. But the Chinese Government persecutes the Christian of "underground church." I will be put in gaol if I return to China.' 6 Those grounds of the application before the Federal Magistrates Court were unparticularised. In the appeal to this Court the appellant recites these grounds of appeal: '2. Refugee Review Tribunal had bias against me and did not consider my application according to the Migration Act 1958. 3. The Tribunal did not notify the reasons that it would be based for refusing my application for a protection visa, I therefore could not provide reasonable response to those doubt. 4. I clarify all my points at the hearing of the Federal Magistrates Court, but the judge did not seem to consider my application in more details and refused my application on my hearing date. 5. I had put forward my argument, [and] grounds of my application at the Court, and I don't think my application has been considered reasonably.' 7 Of course, the obligation of the appellant is to demonstrate an error of law on the part of the Federal Magistrate. As to the first ground, in effect, the appellant is contending that the Federal Magistrate failed to find bias and therefore jurisdictional error on the part of the Tribunal. As to the second ground, the appellant is, in effect, alleging a failure on the part of the Tribunal to discharge its obligation arising under s 424A(1) of the Migration Act 1958 (Cth) and thus it is contended the Federal Magistrate failed to find error on the part of the Tribunal. The remaining grounds suggest that the Federal Magistrate failed to properly have regard to the claims and contentions of the appellant in discharging the adjudication function. 8 The appellant is a citizen of the People's Republic of China and arrived in Australia on 16 November 2005. On 23 November 2005, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. In responding to questions contained within Form C of the application, the appellant made these observations: '[Question] 40: Why did you leave that country? Answer: My neighbour old lady Chen is a Christian. She often talked to me about Jesus. I went to her church meeting in 1996. Since then, I often went to Chen's place as I was unemployed during 1994-2001. The persons from local residential committee often came to Chen's place to check. In September 2000, local police came to Chen's place, they took Chen and five other members (including me) to local police station. They detained us for three days and detained Chen for three months. Next year 2001, I got good job in trading company. Now I got visa to come to Australia. I feel this is a democratic country and have real religious freedom.' Question 41 is in these terms: 'What do you fear may happen to you if you go back to that country?' Answer: 'If I go back, I should give up my Christian beliefs. If not, I will be caught and sent to detention centre at any time by local police and the residential committee like old lady Chen.' Question 42 in these terms: 'Who do you think may harm/mistreat you if you go back?' 9 The appellant said: 'Local police and local residential committee.' 10 Question 43 is in these terms: 'Why do you think this will happen to you if you go back?' 11 The appellant said this: 'In September 2000, local police came to our church gathering at Chen's home. She is the organiser of the meeting. On that day, we six people gathered at her place. We were detained by local police for three days. Mrs Chen detained for three months. In December 2001, I saw police came to her home again. They took her away. In July 2001, I saw her but she was ill heavily. She never gave up her Christian beliefs. If I hold Christian beliefs like her, I fear that I will be put in detention centre.' 12 Question 44 is in these terms: 'Do you think the authorities of that country can and will protect you if you go back? If not, why not?' 13 The appellant said: 'No. They will not protect me. Because local police do not want people to be Christian. They believe Communist Party. They hate people to believe Christian and other religions. They think Christian believes are superstition. They will not protect me.' 14 Those questions and answers are contained at AB7, 8, 9 and 10. On 13 December 2005, the delegate of the Minister rejected the application for a protection visa. On 9 January 2006, the appellant lodged an application for a review of that decision before the Tribunal. At AB58 the appellant nominated, for the purposes of that review, the support of an adviser. On 17 January 2006, the Tribunal wrote to the appellant advising that the Tribunal would conduct a hearing on Monday, 13 February 2006 and would thus provide the appellant with an opportunity to place oral submissions before the Tribunal and generally support the contention that the appellant is a person who holds a well-founded fear of persecution for a Convention reason and is unwilling to avail herself of the protection of her country of origin. The particular fear, of course, is persecution by reason of the appellant's religious beliefs. 15 On 21 February 2006, the Tribunal reached a decision which was handed down on 7 March 2006 affirming the decision of the Minister's delegate. The consideration of the evidence by the Tribunal is set out at AB81, 82, 83 and 84 and the findings and conclusions of the Tribunal are set out at AB85 and 86. At AB81 the Tribunal notes that the appellant is assisted in the hearing process by an interpreter. The Tribunal noted that it wanted the appellant to explain why she held a fear of persecution for a Convention reason should she return to the People's Republic of China. The Tribunal noted that it would take the appellant through the details of her claim for refugee protection during the course of the hearing and that this was in fact the very function of the hearing. 16 At AB82 the Tribunal noted that it was unclear as to whether the appellant was a Christian as contended and whether it could be satisfied that the appellant held Christian beliefs or belonged to a Christian church. The Tribunal noted that this matter was plainly enough central to the claim of refugee status based upon a fear of persecution of the appellant's religious beliefs. The Tribunal questioned the appellant as to whether she belonged to a particular branch of the Christian faith and noted answers about that matter. The Tribunal asked the appellant when the appellant had first become introduced to the Christian faith. The appellant advised that she was introduced to Christianity in 1996 through the meeting with the elderly Mrs Chen. 17 The Tribunal asked the appellant to identify when she actually adopted the Christian value system or Christian faith and the appellant responded that she formally became a Christian in approximately March or April 2004 after the lunar new year. The appellant noted before the Tribunal that at this time she had been made redundant from her work. The appellant stated that she had commenced to embrace religion and had become committed to spreading the Christian faith. The Tribunal expressed some concern that the appellant was not able to identify what particular message or doctrinal position the appellant would seek to spread or indeed which particular church or affiliation she belonged to. 18 There are two further matters in the course of the examination of the evidence that the Tribunal emphasised. The first matter concerned the question of an apparent lack of understanding on the part of the appellant about the nature of baptism and the circumstances surrounding her contended baptism into the Christian faith. It may be that aspects of the doctrinal significance of baptism or the procedure surrounding it, was unable to be articulated by the appellant because of difficulties with the English language. However, in simple terms, the Tribunal seemed concerned that there was an inconsistency between the apparent or the contended baptism, the lack of understanding of the significance of that step, the introduction to Christianity in 1996 and the practise of it with some engagement from March or April 2004. That matter was perceived to be a matter of inconsistency and concern. 19 The second matter of inconsistency related to questioning at the hearing of the appellant in relation to aspects of the parables or Bible stories illustrative of doctrinal positions in the Christian value system. The Tribunal asked the appellant to recite one of the stories she had heard from the Bible as told by Jesus and to explain it to the Tribunal. The appellant advised that she did not know any stories told by Jesus in the Bible. The appellant explained that she had a poor education and was not able to read the Bible. The Tribunal noted that this observation seemed inconsistent with the fact that the appellant had before her at the hearing written questions and answers at the commencement of the hearing. 20 The Tribunal put to the appellant that there seemed to be some difficulty in reconciling the attendance at Mrs Chen's house from 1996 and the discussions with Mrs Chen and the group in relation to matters of the Christian faith and Bible readings, and the appellant's lack of understanding of any of the Bible stories. The Tribunal proceeded to ask the appellant questions about the distinction between the old and the new testament and the Tribunal concluded that the appellant did not seem to know of that distinction. 21 The appellant contended that this lack of understanding, illustrative of a lack of understanding about other matters, was a function of her lack of training in the Christian documents, but did not reflect a lack of commitment to the faith and the Christian value systems and particularly a commitment to the practise of the Christian religion. The Tribunal also asked questions of the appellant about the detention, the events in September 2000, the events which affected the elderly Mrs Chen and related matters. 22 The appellant confirmed to the Tribunal that she was detained for a period of three days and then released. The Tribunal noted that the evidence before the Tribunal indicated that there were no other incidences of detention until the time of the appellant's departure to Australia in November 2005. These matters are canvassed, not only at AB81 and 82, but also AB83 and 84. At AB85 the Tribunal reaches its conclusions and findings. The Tribunal notes that the mere fact that an appellant claims to fear persecution for a particular reason does not necessarily establish the genuineness of that asserted fear or well-founded fear for a Convention reason and that the role of the Tribunal is to test the evidence on those matters and reach the relevant state of affirmative satisfaction. 23 The Tribunal turned its mind to the question then of the credibility of the evidence and the extent to which it could rely upon the evidence of the appellant in reaching the relevant state of affirmative satisfaction. The Tribunal concluded that: 'Based on the claims she provided, there was no basis upon which I would be satisfied the applicant would have a real fear of being persecuted for her religious beliefs and activities.' 24 The Tribunal noted, of course, that the question of the sincerity of the belief is not so much the central matter. The Tribunal noted that it is definitely not fatal to the case of an applicant that they do not appear to have a good knowledge of the religion they are claiming to have converted to. The Tribunal observed: 'The dangers involved in the practise of some religions in some countries, may limit their opportunity to gain a detailed knowledge of a religion in their country of origin. The issue therefore, may be to assess whether the knowledge level of the applicant is consistent with claimed relevant activities and opportunities.' 25 That observation represents the nub of the matter because the Tribunal was really testing the evidence of the claims to participation in working groups discussing the Christian faith and the state of knowledge of the appellant about certain fundamental matters, as a test of credibility. In reliance upon the inconsistencies or at least inconsistencies apparent to the Tribunal, the Tribunal reached conclusions which were adverse to the appellant's credibility. 26 The Tribunal made these observations (at AB86): 'The applicant stated at the hearing that another role she had in China was that of promoting the Bible and her Christian beliefs. When asked by the Tribunal how she was able to do this given that she had no knowledge of any aspect of the Bible, the applicant stated that she did not need to know these things as it was contained in literature that she would hand out. The applicant maintaining that her main role was to help people and that God provided protection to her.' 27 The Tribunal further found (at AB86): 'At the Tribunal hearing, I put my credibility problems with her evidence to the applicant namely the fact that she had no knowledge of the main tenets of Christianity, the fact that she did not have any knowledge of the stories in either the old or new testaments despite being allegedly involved in Bible studies with Mrs Chen for a period of 10 years. After considering her responses, and given I am satisfied the applicant has at least embellished if not fabricated most of the material claims, I am not satisfied she is a witness of truth. Thus I am not prepared to accept the applicant was even associated with a Christian church in the PRC. Furthermore, to the extent that I have not expressly rejected same above, I reject all her material claims to invoke refugee protection obligations in Australia.' 28 To the extent that the appellant contends in the grounds of appeal before this Court that Federal Magistrate McInnis erred by failing to find bias, I find no basis whatsoever for the conclusion that in the analysis of the evidence and the evaluation of the oral evidence, the Tribunal was infected with bias. The findings of the Tribunal were open to it having conducted a review of the evidence and having heard the appellant give oral evidence. The question of credibility is entirely a matter for the Tribunal. 29 If, of course, there is simply no evidence to support the contended inconsistency, that becomes a relevant matter but in the face of an evaluation of the evidence and having had the benefit of seeing the appellant, the conclusions as to inconsistency were open to the Tribunal irrespective of whether another Tribunal may have reached, or this Court or another Court, may have reached a different conclusion. In Ex parte Durairajasinghan v Minister for Immigration and Multicultural Affairs (2000) 168 ALR 407 at 423 at paragraph 67, McHugh J makes plain that findings of credibility are a matter for the Tribunal. His Honour observed: 'However, this was essentially a finding as to whether the prosecutor should be believed in his claim. A finding on credibility is the function of the primary decision maker par excellence.' 30 Similar observations have been made as to those matters. In W148/00A v Minister for Immigration and Multicultural Affairs (2000) 185 ALR 703, the Full Court of the Federal Court, per Lee, Tamberlin and R.D. Nicholson JJ observed at [65]: 'It is important to identify, in this case, the precise question for determination by the minister and the tribunal. The relevant question is whether the minister and the tribunal could be "satisfied" that the case for refugee status has been made out: see ss 65 and 415 of the Act. The High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; per Brennan CJ, Toohey, McHugh and Gummow JJ, considered this requirement of satisfaction and observed that the decision under review is of a subjective nature and is not the same as a review of an entirely objective determination of refugee status. This distinction underlies the need for care when viewing the decision of the tribunal, especially in relation to the question of credibility, because the review is as to the satisfaction of the minister or his delegate and not as to the determination of the minister or the delegate.' 31 Accordingly, in relation to the matters advanced by the appellant in this court, I am not satisfied that there was bias on the part of the Refugee Review Tribunal and thus I am not satisfied that Federal Magistrate McInnis erred by failing to find bias. The conclusions reached by the Tribunal were open to it and the inconsistencies relied upon were matters upon which the Tribunal was entitled to rely. 32 In ground three of the appeal, the appellant contends that the matters upon which the Tribunal relied were not put to her and thus she was not provided with an opportunity to respond. The difficulty with that proposition, of course, is that the matters reflecting the inconsistencies upon which the Tribunal relied, were matters arising out of evidence given by the applicant at the hearing for the purposes of the application judged against the background of the documents provided by the applicant/appellant. Thus, there was no obligation to independently communicate those matters to the appellant. Thus, no contravention of s 424A(1) arises. 33 In relation to the remaining grounds of appeal the central contention is that the Federal Magistrates Court in the conduct of the application brought before it, failed to properly consider and evaluate the various claims made by the appellant. In support of the appeal, the appellant filed an affidavit on 20 December 2006 in which she deposes to these matters: '1. My application for a protection visa was refused by DIMIA and RRT and I found jurisdictional error with RRT. I lodged my application to be reviewed at Federal Magistrates Court. The judge did not consider all information I provided. 2. As I believe that my application has not been considered fairly, I hereby lodge my application to be reviewed at the Federal Court. RRT did not notify the reasons that it would be based for refusing my application for a protection visa. I therefore could not provide reasonable response to those doubt[s]. Federal Magistrate did not consider my application for review fairly.' 34 These contentions reflect the contentions in the grounds of appeal. In relation to the hearing of the application before Federal Magistrate McInnis, I note that Federal Magistrate McInnis observed at paragraphs 2 and 3 of the reasons for judgment that the appellant complained that the Tribunal had not made a fair decision, that the appellant was nervous and found difficulty in articulating or communicating her concerns. Federal Magistrate McInnis in the course of the reasons, takes care to review the underlying facts and contentions of the appellant and I particularly note paragraphs 5, 6, 7 and 8 of Federal Magistrate McInnis decision. 35 The Federal Magistrate also highlighted the aspects of the inconsistencies relied upon by the Tribunal and considered the lack of particularisation in claims. It seems to me that there is no basis for contending that the contentions of the applicant before Federal Magistrate McInnis were not addressed or dealt with in a dispositive and proper manner. Accordingly, those grounds of appeal must necessarily fail. 36 Having regard to all of these matters, the appellant has not been able to demonstrate any error on the part of the Magistrate as contended or at all. Accordingly the appeal must necessarily be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.