SZHVE v Minister for Immigration and Citizenship [2007] FCA 685

DATE: 2 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court (SZHVE v Minister for Immigration [2006] FMCA 1716) in which the appellant claimed constitutional writ relief against a decision of the Refugee Review Tribunal made on 24 October 2005 and handed down on 15 November 2005. In his notice of appeal in this Court the appellant has complained that his Honour's decision was wrong on the following bases: 1. The appellant had provided evidence that he practised his faith as a Christian in Australia regularly but the tribunal failed to take into account the genuineness of that conduct which was, in effect, a manifestation of his practise in China of the Christian faith in the Shouters Church. Accordingly the tribunal incorrectly applied s 91R of the Migration Act 1958 (Cth). 2. Implicitly, the appellant also asserted that the tribunal erroneously concluded that he was not a genuine practitioner of the Christian faith in the Shouters Church in his home in China. Before his Honour and before me the Minister has identified the possibility of two other arguments, namely: 3. A possible failure by the tribunal to give a notice under s 424A(1) of the Act in respect of two new claims first articulated in the appellant's oral evidence before the tribunal, namely: (a) the appellant had gone into hiding while in China as a result of his fear of persecution for religious reasons; (b) the Chinese authorities would know that he had falsified documents because the village head had been to his house and had ascertained that he had gone to Australia. 4. The way in which the tribunal dealt with the appellant's assertion that he had given false information in his passport which had been issued by the Chinese authorities. 2 The appellant had been represented by a migration agent when making his original claim for a protection visa and also in the proceedings before the tribunal. He had claimed to have been a member of the Shouters sect since he had been informally baptised at the age of about five or six in China and that he had thereafter practised regularly in the Shouters sect until he left China in 2005. The tribunal did not accept that the appellant's account of his involvement with the Shouters sect or the Christian religion in China was credible. During the course of giving its findings and reasons it said: 'The Tribunal is not satisfied that the Applicant was involved with the Shouters church while he was living in China for a number of reasons among which are the following.' 3 The tribunal then set out over two closely typed pages of reasons. I raised with counsel for the Minister whether the elliptical expression 'a number of reasons among which' suggested that the tribunal had not discharged its statutory function under s 430(1)(b) or (c) of setting out in full its statement of the reasons for its decision or the findings on any material questions of fact. 4 While the form of expression which the tribunal used in the passage that I have quoted is unfortunate, I am not satisfied that what was set out in the following passages of the tribunal's findings and reasons was not a complete statement of the matters required by s 430(1)(b) and (c). In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said that the reasons for the decisions under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. They noted that the reality is that reasons of an administrative decision-maker are meant to inform and are not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons were expressed. 5 Although a reasonable reading of the tribunal's statement could lead to the inference that the tribunal had withheld a material part of its reasoning or fact finding I am not satisfied that that would be the fair or proper inference to draw in the circumstances of this case. I am of opinion that the tribunal did set out in its statement its reasons and material findings of fact for its ultimate conclusion that it was not satisfied that the appellant had been involved with the Shouters Church while he was living in China in the passage following that which I have quoted. 6 One of the difficult factual tasks which the Parliament has given to the tribunal is the assessment of the credibility or reliability of the claims made by applicants for review. Often these are difficult to determine. It is not the function of the Court to engage in any review of the merits of those claims. While some of the questions which the tribunal asked in the present case would not be ones which a judge would regard necessarily as being relevant or material to findings of credibility, the Parliament has left it to the tribunal to form its own view by the inquiry and investigation it undertakes in its own way. 7 The ultimate conclusion that the appellant was not involved in the Shouters Church in China was arrived at by the tribunal after a consideration of, I think from considering its statement, the whole of the material before it. Unless there be a jurisdictional error in the way in which it conducted the review, the Court is unable to grant relief to the appellant against the decision that the tribunal made to refuse him a protection visa. That makes it necessary to examine the various possible ways in which his notice of appeal and the arguments fairly put by the Minister as being open to be raised on his behalf can be assessed.