SZKHT v Minister for Immigration and Citizenship [2007] FCA 1754

FEDERAL COURT OF AUSTRALIA

SZKHT v Minister for Immigration and Citizenship [2007] FCA 1754

SZKHT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 1376 OF 2007

SUNDBERG J

16 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1376 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKHT

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 16 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal fixed in the sum of $2,100.00. 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 1376 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKHT

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SUNDBERG J

DATE: 16 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China who arrived in Australia on 11 March 2006. On 13 April 2006 he lodged an application for a protection visa which was refused by a delegate of the first respondent. His application to the Refugee Review Tribunal for a review of that decision was unsuccessful. His application to the Federal Magistrates Court for a review of the Tribunal's decision was dismissed. The present appeal is from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) the appeal is heard by a single judge. 2 In his written statement to the Tribunalthe appellant claimed that he faced persecution in China as a result of his Shouter religion. He said the police had surrounded him, and his uncle assisted him to escape. He claimed he purchased a fake South Korean passport and came to Australia. 3 The Tribunal did not accept that the appellant was a follower of the Shouters in China due to his lack of knowledge of the church, and evidence that was inconsistent and not completely truthful. 4 In his amended application in the Federal Magistrates Court the appellant complained that the Tribunal did not believe him, and claimed that it made an error of law, and disregarded the truth of his claims relating to the danger of returning to China. 5 The Federal Magistrate rejected the complaint about the credibility findings. There was nothing in the case to demonstrate that the Tribunal had acted on evidence inconsistent with facts incontrovertibly established by the evidence, or that was glaringly improbable. The Federal Magistrate found no error of law, and noted that the Tribunal rejected the claim that it would be dangerous for the appellant to return to China because it was not satisfied that he had a well founded fear of persecution for a Convention reason if he returned to China. 6 There are two grounds of appeal to this Court. The first is that the Tribunal ignored the evidence provided by the "local church". The Shouters church refers to itself as the "Local Church". The Tribunal said at page 10: Huhan pai or 'huhan' is an evangelical Christian group known in English as the 'Shouter Sect' or the 'Shouters'. The Church prefers to refer to itself as the Local Church …. The organisation of the church is based on a New Testament pattern of worship and ministry, proposing a 'one locale, one church' formula. The Tribunal set out (at page 11) a passage it derived from the website of the Local Church in Sydney, one of about 3500 congregations outside China that follow the ministry of the China Local Church (http://australia.localchurch.orga/contact-us/region.htm): The church does not refer to itself as the 'Shouter Sect' (huhan pai). This pejorative label was given to it by the Chinese authorities during their crackdown on the group, which was first banned in the early 1980s (Kindoop, Jason 2004, 'The Local Church: a Transnational Protestant sect', in The Politics of Protestantism in Contemporary China: State Control, Civil Society, and Social Movement in a Single Party State, 16 May 2004 p 429). The Tribunal set out at length the appellant's evidence about huhan (ie the religion practised by the Local Church). 7 It is accordingly impossible to accept the contention that the Tribunal ignored the appellant's evidence about the Local Church and its beliefs. Although the ground of appeal refers to evidence provided "by the local church", there was no such evidence before the Tribunal. The Appeal Book contains a letter from the Hebron Chinese Alliance Church in Sydney certifying that the appellant started attending the Church in June 2006, but that was written after the Tribunal gave its decision. The appellant obviously means his evidence about the Church and its beliefs. 8 The Tribunal said no more about the evidence about the Local Church because it did not accept that the appellant was a follower of huhan in China. The appellant's notice of appeal does not challenge this conclusion. However, in view of the fact that he is not legally represented, it should be recorded that the Tribunal's conclusion is not susceptible to challenge. It gave its reasons at page 11: He claims to have followed huhan for 10 years, going to gatherings three to four times a week. However, when asked to describe the principles of huhan he said that it was 'mostly about how God created the world'. Despite telling the Tribunal that he had tried Christian denominations that were accepted in China, he was unable to describe what aspects of huhan distinguished it from these other denominations, other than to say that huhan had more activities scheduled and that the followers spoke loudly. He was unable to describe differences in the bibles used by huhan compared to other Christian denominations but agreed that there were some differences. He said it 'depended on how you felt'. 9 The Tribunal went on to say that the appellant had very little knowledge of basic Christian belief. He did not understand the status of Jesus "in regard to the position of God" and could not adequately recall any stories about Jesus or describe instructions for life given by him. 10 So the position is that the Tribunal did not ignore the evidence about the Local Church. It recorded the appellant's evidence about it and his attachment to it and to the religion its members practised, but did not believe the evidence. This what the appellant must mean by the claim that the Tribunal ignored the evidence. It did not act on the evidence, because it did not believe him. The Tribunal found his responses at the interview evasive. It drew attention to inconsistencies in his evidence. The Tribunal's reasons provide a rational basis for this finding of lack of credibility, which was accordingly not susceptible of review by the Magistrate: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]. As I have said, the appellant did not directly attack that finding. 11 The second ground of appeal is that the Tribunal failed to consider the appellant's secondary refugee claim that he fears returning to China because he will be persecuted for leaving on a fraudulent Korean passport. The Magistrate noted that before him the appellant claimed that the Chinese police wanted him because of his religion and because he used a Korean passport to come to Australia. His Honour said (at [19]) that the second claim had not been put to the Tribunal, and the appellant did not assert that it had been: it is a new matter. The Tribunal made no error of law or fact by failing to deal with a claim that [was] not put before it. 12 There is nothing in the Appeal Book that suggests that the secondary claim was put to the Tribunal, and there is no hint of it in material before the Tribunal or its reasons. That is because the appellant's initial claim was that he was a citizen of the Republic of Korea born there in 1964. He claimed that he feared persecution, presumably by the Korean government, because of his political opinion. That was the case considered by the delegate. The Tribunal invited the appellant to provide additional information about his feared persecution in Korea. In response he disclosed his true identity and changed his reason for fearing persecution from political opinion to religious belief. He did not express a fear of persecution in China by reason of his use of a Korean passport. The Magistrate's conclusion involves no error. 13 The appellant has established no error in the Magistrate's dismissal of his application and the appeal must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.