FEDERAL COURT OF AUSTRALIA SZHCC v Minister for Immigration and Citizenship [2007] FCA 1114 SZHCC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 852 OF 2007 BESANKO J 1 AUGUST 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 852 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHCC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE OF ORDER: 1 AUGUST 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 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 852 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHCC Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BESANKO J DATE: 1 AUGUST 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from an order made by a Federal Magistrate. 2 The appellant was born on 29 November 1965 in the Province of Fujian in the People's Republic of China. She arrived in Australia on 8 January 2005. She came to Australia with her husband, who also has an appeal before this Court. 3 On 17 February 2005, the appellant lodged an application for a Protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 8 March 2005, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant's application. On 11 April 2005, the appellant applied to the Refugee Review Tribunal for a review of that decision. The appellant was invited to attend a hearing before the Tribunal and she did so and gave oral evidence. On 9 August 2005 the Tribunal affirmed the decision not to grant a protection visa to the appellant. On 8 September 2005, the appellant applied to the Federal Magistrates Court for constitutional writs in relation to that decision. On 8 May 2007, a Federal Magistrate dismissed the application and the appellant now appeals to this Court. 4 The application by the appellant's husband followed a similar course and he has also appealed to this Court against a Magistrate's order in relation to his application for constitutional writs. The appeals were heard together. 5 In her application for a protection visa, the appellant made a number of claims. She said that she became a Christian in 1986. She said that there was no freedom of religion in China. She said that her husband was the leader of a small church and that she and her husband practised their Christianity. The appellant said that they were warned by the authorities from time to time and they prayed in secret. She said that in March 2004, she and her husband were arrested by the police and detained for four days for questioning. She said that they suffered mental and physical torment from the Chinese Communist Party and that they were questioned about their relationship with overseas churches. She said that they were released only after bribing government officials. She said that they paid a large sum of money for their respective passports and got visas to come to Australia in December 2004. 6 In her application to the Tribunal for a review of the delegate's decision, the appellant repeated those claims, although in a more abbreviated form. 7 Before the Tribunal, the appellant said that her application for a protection visa and her application for review were prepared by a friend whose name she did not know. The completion of the documents had been arranged through her husband. She was asked by the Tribunal member how the friend had prepared the applications and she said that she did not know. She was asked if she knew what was in the two applications and she said that she thought they were an application for refugee status. She was asked if she knew what they claimed about her and what had happened in China. At that point she paused and then said (to quote the Tribunal member) "the main reason was that she liked to stay in Australia". The appellant was asked by the Tribunal member why she had come to Australia and she said she had had a dispute with a neighbour over land and that is why she had wanted to come to Australia. She was asked about her dispute with the neighbour. She said that Australia was very kind to her and had a very good environment. The Tribunal member asked the appellant if she was afraid of anything in China if she returned there and she said that she was now in Australia that she liked it and wanted to stay on as it was good for her health. Again, the appellant was asked by the Tribunal member whether she was afraid of anything in China and she said that she was afraid there were too many people living in China and it was quieter living in Australia. The appellant said that the air in China was not clean. She was asked about her son, who is living in Australia and she said she wanted to come to Australia to look after him. 8 The Tribunal member found that the appellant was unaware of the claims advanced in her application for a protection visa and application for review and knew only that they related to her application for refugee status. The Tribunal member found that the appellant did not prepare her written claims and that she had no knowledge of their nature and he found that he could not place any weight on the written claims. The Tribunal member held that he was unable to identify from the information before him, any grounds for believing that the appellant had ever suffered serious harm in China for a Convention reason or that she would face a real chance of serious harm for a Convention reason, or for any reason, should she return to China. The Tribunal member said that he was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if she returned to China either now or in the reasonably foreseeable future and he said that he was not satisfied that she was a refugee. 9 The Magistrate said that the Tribunal member had not committed any jurisdictional error. He noted that the case was not one in which the Tribunal member had compared the information provided by an applicant in his or her application for a protection visa with the information that applicant provided to the Tribunal. The Magistrate noted that the Tribunal member had accepted what the appellant had said at the hearing as to the provenance of the written applications and that he had then proceeded to make his decision on what the appellant herself had put to him. 10 The appellant complained that the Tribunal had not referred to any of the independent country information. The Magistrate rejected that complaint saying that, having found that the appellant's claims had no Convention nexus, the Tribunal was not required to proceed further and refer to any country information. 11 The appellant complained that she was not given a hearing before the Tribunal as contemplated by s 425 of the Act. She said that she was "too scared" at the hearing to give evidence and that she was nervous and could not express herself "very well" at the Tribunal hearing. The Magistrate rejected that complaint. He referred to the fact that the appellant gave evidence before the Tribunal and was given an opportunity to comment. 12 The Magistrate also rejected a claim by the appellant that the Tribunal member was biased. He said that the Tribunal member had in fact afforded the appellant every opportunity to present her case. The Magistrate found that "far from showing bias on the part of the Tribunal, in my view, this [that is, directing his attention to the appellant's 'unsophisticated nature'] reveals a Tribunal attuned to the need to provide a fair hearing to an applicant". 13 The appellant made a reference to s 91R of the Act, but the Magistrate noted that this reference was unexplained. He said that he could not see how the matters in that section were relevant in light of the Tribunal's decision. 14 The appellant complained that the Tribunal member did not make his decision based on written submissions. The Magistrate noted that no written submissions were made to the Tribunal and nothing was put before the Court to show that the appellant had sought an opportunity to make such submissions. The Magistrate held that the findings made by the Tribunal member were plainly open to him and he dismissed the appellant's application. 15 The first respondent made written submissions on the appeal. At the outset of the hearing, the appellant claimed she had not received the first respondent's written submissions. I am satisfied on the evidence presented by the first respondent that the written submissions were sent to the appellant at the address provided by her in her notice of appeal. The interpreter read the written submissions to the appellant before the appeal commenced and the hearing of the appeal was stood over from 10.15 am on Monday 30 July 2007 to 2.15 pm on that day. Furthermore, the appellant did not ask me to adjourn the hearing of the appeal from Monday 30 July 2007 to Thursday 2 August 2007 to enable her to give further consideration to the written submissions although I indicated that I was disposed to do so if requested. 16 On appeal to this Court, the appellant, in essence, repeated the arguments which she had put to the Magistrate. She repeated some of the factual assertions made in her application for a protection visa and application for review. She was labouring under a misapprehension as to the Tribunal's reasoning. She asserted that because the Tribunal member had accepted her evidence he should have found that she had a well-founded fear of persecution for a Convention reason. In fact, the Tribunal member accepted her evidence that she knew nothing of the written claims in her application for a protection visa and application for review and that they should be disregarded. On her evidence to the Tribunal, no well-founded fear of persecution for a Convention reason was established. The appellant also claimed that in some way the Tribunal had failed to comply with s 424A of the Act. That complaint was not particularised and there is no substance in it. In summary, nothing was put by the appellant to suggest that the Magistrate erred in the approach he took. 17 In my respectful opinion, the Magistrate was correct, for the reasons he gave, to reject the appellant's grounds for challenging the Tribunal's decision. In those circumstances, the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 1 August 2007 The Appellant appeared in person Counsel for the Respondent: Ms B Nolan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 30 July 2007 Date of Judgment: 1 August 2007