SZLAV v Minister for Immigration and Citizenship [2007] FCA 1931

FEDERAL COURT OF AUSTRALIA

SZLAV v Minister for Immigration and Citizenship [2007] FCA 1931

SZLAV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1836 OF 2007

GRAHAM J

12 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1836 OF 2007

BETWEEN: SZLAV

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 12 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Application filed 11 September 2007 be dismissed. 2. The applicant pay the costs of the first respondent. 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 1836 OF 2007

BETWEEN: SZLAV

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 12 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant was born in Fujian province in the People's Republic of China on 16 April 1978. He lived near the city of Fuqing in Fujian province. 2 It would appear that he acquired a Chinese passport on 3 November 2003, on which he travelled to Australia, arriving on 6 June 2004. He did not apply for a protection visa for some two and a half years, doing so on 2 February 2007. 3 The applicant's Application for a Protection (Class XA) visa was refused by a delegate of the Minister on 13 March 2007. He sought review of the Minister's delegate's decision in the Refugee Review Tribunal ('the Tribunal'), his application for review being lodged on 13 April 2007. 4 The Tribunal was unable to decide the application for review favourably to the applicant on the information available to it. Accordingly, it invited the applicant to appear at a hearing to give oral evidence and present arguments in support of his application. 5 A hearing took place on 7 June 2007 at which the applicant gave evidence. On 8 June 2007 the Tribunal decided to affirm the decision of the Minister's delegate not to grant the applicant a Protection (Class XA) visa. That decision was handed down on 19 June 2007. 6 On 10 July 2007 the applicant filed an Application in the Federal Magistrates Court of Australia, seeking an order that the respondents show cause why constitutional writ relief should not be ordered in respect of the Tribunal's decision. The Application specified three separate grounds which were particularised and provided as follows: '1. The Tribunal significantly misstated the effect of important country information; and the Tribunal did not consider the actual contents of the country information. Particulars: a. I did not have a preaching role in my religious activities in China, but it never means that I will not be in dangers under the Communist dictatorship. Strongly supported by some independent country information such as the latest US State Department's International Religious Freedom Report, a major activist of unofficial church like me in China, who actively spread religious freedom and independency, must be subjected to persecution. b. Furthermore, independent country information such as the latest US State Department's International Religious Freedom Report has never ever indicated only those who have played preaching roles in religious activities will be targeted by the PRC authorities. c. It would definitely be a jurisdictional error if the Tribunal significantly misstated the effect of important country information; and it is also a jurisdictional error if the Tribunal did not consider the actual contents of the country information (SZIAY v MIMA & Anor[2006] FMCA 1680; Federal Magistrates Court of Australia, Smith FM, SYG43 of 2006, 14 December 2006). 2. The Tribunal failed to comply with its obligation under s.424A(1) of the Act . Particulars: a. The Tribunal has considered the information, which my evidences might be inconsistent with or not supported by the latest US State Department's International Religious Freedom Report, as the reason or part of reason for affirming the decision that is under the review. b. It is apparently that the above-mentioned information is not the one specifically excluded by sub-section (3) of s.424A, because:- · that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or · that the applicant gave for the purpose of the application; or · that is non-disclosable information. c. Therefore, the Tribunal must comply with its obligation under s.424A(1) of the Act. Unfortunately, the Tribunal, before making its decision, failed to provided (sic) me particulars of the information mentioned above; and failed to inform me or ensure me, clearly and properly, that those pieces of information would be directly in relation to his final decision; and failed, honestly and fairly, invited me (sic) to comment on them. 3. The Tribunal failed to consider my claims properly and fairly. a. The Tribunal failed to conduct a "real chance" test fairly and properly in my case.' 7 When the application for an order to show cause came before the learned Federal Magistrate on 23 August 2007, he directed his mind to each of the grounds, which he summarised in SZLAV v Minister for Immigration & Anor [2007] FMCA 1463 at [6] as follows: '6. These proceedings began with a show cause application filed on 10 July 2007. That application asserts notification of the Tribunal decision on 19 June 2007. I find that the application was filed within time. The application asserts significant misstatement by the Tribunal of the country information it relied upon, a breach of s.424A of the Migration Act 1958 (Cth) ("the Migration Act"), and a failure to consider the applicant's claims properly and fairly.' 8 At [11] the learned Federal Magistrate found that the applicant had failed to disclose an arguable case of jurisdictional error. Accordingly, his Honour dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12(1)(a) provides: '44.12(1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; …' Subrule (2) of rule 44.12 provides: '44.12(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.' 9 What is presently before the Court is an application for leave to appeal from the decision of the learned Federal Magistrate. Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal shall not be brought from a judgment referred to in subsection (1) [which includes a judgment such as that of the Federal Magistrate] unless the Court or a judge gives leave to appeal. 10 Order 52 rule 5 of the Federal Court Rules requires an application for leave to appeal to be filed within 21 days after, relevantly, the judgment was pronounced. In this case the application for leave to appeal would seem to me to have been brought within time. Perhaps for more abundant caution an order was sought under Order 52 rule 5(3) that compliance with subrule (2), which imposed the 21 day time limit, be dispensed with. 11 The Application for Leave to Appeal was filed in this Court on 11 September 2007. It is supported by an affidavit of the applicant and a draft Notice of Appeal is attached to that affidavit. To all intents and purposes the affidavit and the attached draft Notice of Appeal do no more than repeat that which appeared in the application for the order to show cause filed in the Federal Magistrates Court of Australia on 10 July 2007. Formally, the grounds in the draft Notice of Appeal are: '1. The Federal Magistrates erred in law. 2. The Federal Magistrates was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings.' 12 For a grant of leave to appeal to be made it is necessary for an applicant such as SZLAV to establish that the decision of the learned Federal Magistrate was attended with sufficient doubt as to warrant its reconsideration, and that substantial injustice would result if leave to appeal were refused. 13 The Tribunal found that the applicant was a citizen of China and assessed his claim to refugee status by reference to that country. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. In its 'FINDINGS AND REASONS' the Tribunal stated: 'The applicant claims to have been persecuted for his Christian beliefs and practices and fears further persecution if he returns to China. He claims to have been detained for a period of 5 months and physically and mentally persecuted by the police and authorities during his incarceration. He also claims that when released from detention the authorities continued to harass and interrogate him, as well as his parents, at regular intervals. The applicant claims that the founder of his local church movement, Mr He, and 3 other Christian colleagues were arrested in 2004 and currently remain in jail. The Tribunal does not accept the applicant's claims of persecution by the Chinese authorities for his and his colleagues' religious beliefs, including his claims of detention and persecution by the PSB and other authorities. …' 14 The Tribunal did not accept that the applicant had a sufficiently prominent role in unauthorised church activities to have caused the persecution by the authorities which he claimed to have experienced. The Tribunal attached no weight to certain translated and original documents which the applicant claimed were the Fuqing City's People's Court verdict convicting the applicant of showing an illegal imported video and sentencing him to four months' detention and fining him 2000 Yuan because the Tribunal was not satisfied on the evidence that the original was a genuine document. 15 The Tribunal had regard to the fact that since arriving in Australia the applicant only attended church 'sometimes' and did not know the name of the minister of his local church. The Tribunal was also influenced by the delay of more than two years between the applicant's arrival in Australia and the lodging of his application for a protection visa. The Tribunal referred to the fact that relevant Country Information indicated that Christians in unauthorised church movements in Fujian province have generally been treated more liberally than in other Chinese provinces and such persecution that has occurred has usually involved leading clergy. 16 The Tribunal also referred to the latest US State Department International Religious Freedom Report, which did not cite recent incidents of persecution and detention of Christians in Fujian province. It would appear that the report was silent on such persecution. 17 Section 424A of the Migration Act 1958 (Cth) ('the Act') required the Tribunal to give to the applicant particulars of any information that the Tribunal considered would be the reason or a part of the reason for affirming the decision that was under review. Insofar as the applicant complains about the non-provision to him of information which was Country Information it is clear that the Tribunal's obligation did not extend to the provision of particulars of such information, because it fell within the excluded category covered by s 424A(3)(a) of the Act. 18 In relation to the obligation falling upon a Tribunal under s 424A it is also instructive to have regard to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. 19 The applicant has not relied upon any written submissions. When invited to address the Court on the grounds referred to in his affidavit in support of his application for leave to appeal he made the point that the Chinese government does not divide Christians into two categories. He submitted that as an activist in religion he was as prone to persecution as leaders in the church may have been. While it was not a matter that was relied upon expressly by the Tribunal, the appellant also submitted that as he had not graduated from a religious college he could not be expected to know more detail about Christianity than he had professed and referred to in his application for a protection visa. 20 Much of the remaining submissions advanced by the applicant were directed at seeking a merits review of the decision of the Tribunal which, of course, it was not open to the learned Federal Magistrate to provide. It does not seem to me that there is any proper basis for saying that the Tribunal significantly misstated the effect of Country Information or that it failed to consider the actual contents of the Country Information that was before it. I am satisfied that the Tribunal did not fail to comply with its obligation under s 424A of the Act and it does not seem to me that the Tribunal failed to consider the applicant's claims properly and fairly. 21 It has not been established that the decision of the learned Federal Magistrate was attended with sufficient doubt to warrant its reconsideration. Accordingly, the application for leave to appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.