FEDERAL COURT OF AUSTRALIA SZCES v Minister for Immigration and Citizenship [2007] FCA 1935 SZCES v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1759 OF 2007 GRAHAM J 14 NOVEMBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1759 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZCES Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 14 NOVEMBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent Minister's costs fixed in the agreed sum of $2,300. 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 1759 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZCES Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 14 NOVEMBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant claims to have been born in Fujian in the Peoples' Republic of China on 6 December 1970. He arrived in Australia on 29 December 2001 under a temporary business visa issued to him in Beijing on 10 October 2001. That visa was endorsed on a passport of a person whose name was said to be Du Lianjiang. The appellant says that that passport was not issued to him but was one to which his photograph was attached. I will not state the name which he claims to be his name beyond indicating that it is 'H… R…'. For the purposes of these proceedings the appellant has been identified as SZCES. 2 The Refugee Review Tribunal ('the Tribunal') accepted the appellant's claim that his real name was 'H… R…', that the passport under which he travelled to Australia had been falsified by placing his photograph into it, that he was born in Fujian in December 1970 and that he is a citizen of the Peoples' Republic of China. 3 The appellant claims that he fears persecution in China because of his membership of an illegal underground church. 4 On 9 January 2002 the appellant applied for a Protection (Class XA) visa. That application was refused by the Minister's delegate on 30 August 2002. 5 The appellant applied to the Tribunal for review of the Minister's delegate's decision on 27 September 2002. The Tribunal conducted a hearing at which the appellant gave evidence on 14 August 2003. On 30 October 2003 the Tribunal decided that the decision of the Minister's delegate to refuse the appellant a protection visa should be affirmed. 6 On 6 March 2006 a Federal Magistrate ordered that the decision of the Tribunal of 30 October 2003 should be quashed, and issued a writ of mandamus requiring the Tribunal to redetermine the matter according to law. 7 On 10 May 2006 the appellant was invited to a further hearing of the Tribunal fixed for 15 June 2006. In inviting the appellant to the hearing the Tribunal advised the appellant that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. He was invited to give oral evidence and present arguments in support of his claims and informed that he could ask the Tribunal to obtain oral evidence from another person or persons. The appellant attended the hearing on 15 June 2006 and gave evidence to the Tribunal. A friend of the appellant also gave evidence before the Tribunal. 8 The appellant relied upon documentation which was provided at the hearing including a photograph of himself with a group of people, a birth certificate referring to the birth of his daughter and what I will call three letters of support from certain churches. In chronological order he relied upon a statement from a person residing in Fuqing City, Fujian Province, China which referred to the participation of the appellant and another in gospel activities and the organisation of bible studies in China. Another statement dated 22 May 2006 was from a person resident in Fuqing City, Fujian Province, China who referred to the participation of the appellant and another in church activities in China. The third document was from the Padstow Chinese Congregational Church, being a letter 'TO WHOM IT MAY CONCERN' dated 13 June 2006, verifying that the person whose passport the appellant had used had 'been regularly worshipping in Padstow Chinese Congregational Church'. 9 The decision of the Tribunal upon its further consideration of the appellant's application for review of the Minister's delegate's decision was made on 10 July 2006 and handed down on 20 July 2006. By that decision the Tribunal affirmed the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa. 10 On 18 August 2006 the appellant filed an application in the Federal Magistrates Court of Australia seeking review of the second Tribunal decision. That application was decided adversely to the appellant by Lloyd-Jones FM on 14 August 2007, who ordered that the application be dismissed and that the appellant pay the respondent Minister's costs and disbursements of and incidental to the application. 11 By a Notice of Appeal filed 31 August 2007 in this Court the appellant has appealed from the judgment and orders of the learned Federal Magistrate. 12 Proceedings before the Tribunal are inquisitorial rather than adversarial. A Tribunal Member conducting an inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out. It is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark upon. 13 Section 424A of the Migration Act 1958 (Cth) ('the Act') relevantly provided: '424A(1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. … (3) This section does not apply to information: (a) 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 (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information.' 14 In SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 190 ('SZBYR'), which was handed down on 13 June 2007, the High Court gave close attention to the circumstances in which s 424A was engaged. The Court's consideration was primarily directed at s 424A(1)(a) of the Act. Whilst it did not deal expressly with s 424A(1)(b), it made a number of general observations in respect of s 424A which demonstrate that the scope of the 'it' referred to in s 424A(1)(b), namely the 'information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review', is limited. 15 In their joint reasons for judgment in SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ commenced their consideration of s 424A by observing, firstly, that its effect was mandatory, in that a breach of it constituted jurisdictional error, and secondly, that its temporal effect was not limited to the pre-hearing stage, referring to the Court's earlier judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 ('SAAP') (see SZBYR at [13]). At [22] their Honours drew attention to the 'limited scope of s 424A' and at [15] and [21] they said: '[15] … Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. … … [21] … Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …' 16 Importantly, their Honours held at [17] that '[t]he use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) [was] to be determined in advance – and independently – of the tribunal's particular reasoning on the facts of the case' (emphasis added). 17 At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477, saying: '[18] … Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": …does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc … If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …' (Footnotes omitted and emphasis added). 18 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 ('SZBEL') Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in relation to matters of procedural fairness at a Tribunal hearing at [47] – [48]: '[47] … It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [48] … as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry: … the rules of natural justice do not require the decisionmaker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.' (footnotes omitted) 19 I will not endeavour to repeat in detail the claims and evidence as recorded in the tribunal decision record, however I will highlight some of those matters: '… He [referring to the appellant] claims to have been … in detention from November 1999 to May 2000 … He claims to have been married in Fujian in 2001. … He claims that his wife, parents and sister are living in China. In a three-page typed statement attached to his application, he also claims that: · He is a pious Christian and a key member of an underground church in China who has been persecuted for his activities in the church. He escaped from China to avoid further persecution. · A friend introduced him to the underground church and he was baptized in 1996. From then on he became involved in religious activities and began to spread the Gospel. He was glad to serve God and went to church almost every weekend and practised his religious activities. · … In October of [1997] he opened a small restaurant … The restaurant … attracted many young people. He took this opportunity to spread the Gospel. From mid 1998 he took charge of a Bible study group in his underground church consisting of more than twenty members. · In October 1998 the underground church was required to register with the official "Three-Self Church." … The underground church refused to register and was closed down as being an illegal church. Many members were interrogated and arrested. As the head of the Bible study group he was questioned on at least four occasions and was detained for fifteen days. He was threatened that if he did not cease his illegal religious activities he would have trouble. · He was not willing to give up his religion and in 1999 he and his friend set up another underground church in secret. His restaurant … became the major location of the underground church. With the help of the young people they … established eight Bible study groups and organized religious activities twice a week. … · The government launched an attack on the underground churches in October 1999 and his church was in trouble again. His restaurant was closed down and confiscated, many members were interrogated and some of the young people who had joined its activities were dismissed. He and his friend were arrested by the PSB "as the black hand of the young people". · His friend was sentenced to one year in prison and he was detained for six months. The government publicised his "crime" with a wall poster on the wall of his house. His friend was released in November 2000 and eventually contacted him. They agreed to re-establish their religious organization. … In January 2001 they set up a small Bible study group and spread the Gospel. … In April 2001 he converted the study group into an underground church. There were over a hundred members. He and his friend often went to villages to spread the Gospel and began to collect donations in September 2001. · However, in November 2001 while carrying out their activities in a small village they were surrounded by police. He realized big trouble was coming. He was protected by many local people and escaped with their help. He secretly escaped to a small village in Fujian. · Later he was informed that over thirty participants had been arrested … He had to leave his country because it was impossible for him to survive any longer. Many people and friends protected and supported him and helped him obtain a passport and exit permit. … Otherwise he would not have been able to escape the persecution of the Chinese government.' 20 The Tribunal was not favourably impressed by the appellant's evidence in respect of the alleged November 2001 incident where the appellant said that while carrying out their activities in a small village they were surrounded by police. The tribunal member spoke of this claim as being affected by: '… the notable vagueness of his account at the hearing when asked about his escape from encircling PSB officers. Such an incident, if it had occurred, could reasonably be expected to have been a dramatic and memorable one for the Applicant, not least because it is said to have been the trigger for his decision to flee China and seek safety in Australia. The minimal detail offered by him in response to a number of questions on the subject did not give the appearance of an authentic experience or one which was at all plausible.' 21 The Tribunal was also not favourably impressed by the claim that following the November 2001 incident he was protected and supported by many people and friends who helped him to obtain a passport. As it transpires, the passport which he used to travel to Australia contained the visa referred to earlier which was issued to him on 10 October 2001. 22 On 12 March 2002, the Department had written to the appellant inviting him to comment on certain matters including the inconsistency in relation to the date of acquisition by him of the passport. On 18 April 2002 the appellant replied to the Department's letter. His reply included: '… the information provided by the Department has suggested that Chinese government will have a new policies (sic) in October and November … However, even today, neither the Department of Immigration nor any third parties in the world have any substantial evidences (sic) to demonstrate that the Chinese government does indeed enforce such a new policies (sic). On the contrary, a well-known event has been happened (sic) in China, … a Christian has been subjected to persecution only for the reason that he has taken some Bibles to China. … I accept that [it] may be difficult (but not impossible) to departure (sic) from [China] with (sic) a passport. However, China is a country in which the corruption is extremely active in every corner … It is in such a situation that many friends are able to … assist me to get my passport and exit permit …' 23 The matters raised by the Department's letter had suggested that the Chinese authorities were approaching underground churches in a less strict manner than previously and that the unofficial Catholic Church was tolerated provided that public order was not disrupted. It had also been suggested that the opportunity to obtain illegal documents and to leave the country with documents obtained through bribery was strictly policed. 24 The Tribunal's decision records in relation to claims at the hearing that a number of questions were put to the appellant in respect of his beliefs and his religious observance, his understanding of Christianity and the documents which he had provided, to which reference has been made earlier. 25 The Tribunal's 'FINDINGS AND REASONS' included, amongst other things: '… I am not satisfied on the evidence before me that the fact of the Applicant's having used a falsified passport means that I should accept at face value his claim that he did so because he could not obtain a passport in his own name and feared detection when leaving China. The Applicant claims that he fears persecution in China because of his membership of an illegal underground church. … … I am not satisfied that the Applicant has told the truth about his religious activities in China or the harm he claims to have suffered as a consequence … The Applicant claims that he is a Christian who was baptized in an underground church in 1996. He claims to have been involved since then in religious activities, including spreading the Gospel, organizing Bible study groups and visiting the sick to pray with them. He claims his church was closed in 1998 when it refused to register with the government-run church and that he helped to found two successor underground churches. I am not satisfied as to the truth of these claims, for the following reasons: First, at the hearing the Applicant's account of his religious activities in China was notably vague, generalized and uninformative. … Second, I am not satisfied that the Applicant's account at the hearing of his proselytizing activities in his restaurant is credible. … Third, I am not satisfied on the basis of his oral evidence … that the Applicant's knowledge of the Christian religion is consistent with his claims that has been a Christian for the last ten years (sic), has attended regular services in his underground church and in Australia and has studied the Bible. While his responses give the impression of having learned a few basic facts about Christian teachings they do not indicate the degree of knowledge he might reasonably be expected to have acquired in ten years of regular Christian worship. The knowledge gaps and vagueness which characterized most of his answers do not indicate that he has more than a passing acquaintance with Christian belief. I accept that it may be possible for an applicant to regard himself or herself as a Christian despite having no connection with any established church and having little or no knowledge of the Bible, the life of Jesus or of any formal Christian doctrine. This is not, however, the situation which the Applicant claims for himself. He claims to worship regularly and read the Bible. He claims, in fact, to have been the head of a Bible study group. I am not satisfied that these claims are consistent with the Applicant's very imperfect knowledge of the Christian faith, as demonstrated in his responses at the hearing. I accept that the evidence of the witness and the letter from the Minister of the Padstow Chinese Congregational Church indicate that the Applicant has had some contact with organised religion in Australia. However, given the Applicant's very limited knowledge of the Christian religion which he demonstrated at the hearing I am not satisfied that has been worshipping (sic) regularly at the Padstow church for the last three years, as claimed by the witness, or that he is a regular worshipper there as claimed in the Minister's letter. I place little weight on this evidence. For the same reason I place little weight on the two letters said to have been brought back to Australia by the witness, testifying to the Applicant's religious involvement in China. … … … I am not satisfied that the Applicant has ever been involved with an illegal underground church in China. There is no evidence before me to suggest that a religious involvement has ever been mistakenly imputed to him by the authorities. It follows that I am not satisfied that the Applicant has ever suffered harm for this reason in China. … … I am not satisfied that the Applicant was arrested and detained on two occasions, mistreated by being hosed with a water gun, beaten or deprived of proper food. I am not satisfied that he was placed under surveillance by the police or that a sign was fixed to his house asking his neighbours to monitor and report on him. I am not satisfied that he narrowly escaped arrest when police surrounded a village where his church was meeting or that he went into hiding. Nor am I satisfied that his family has been harassed by the PSB constantly coming to the house asking for his whereabouts, as claimed by the witness.' 26 The Tribunal was not satisfied that there was a real chance that he would suffer serious harm for reason of any religious observance in the future. In the circumstances the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for reason of his religion. 27 In light of the High Court's decision in SZBYR it is clear that there is no substance in the appellant's second ground of appeal. 28 When asked to address me in respect of his first and third grounds, which suggest that the Tribunal failed to consider his claims and evidence fairly and properly, the appellant said words to the effect: 'I just want to know whether RRT did research to prove whether what I said was true or not. The Tribunal didn't do anything to prove whether the evidence of the Padstow Church was true or not. The Tribunal didn't even call the church to make the necessary inquiry. I believe they never did any inquiry. ' 29 It is plain from what I have earlier said about the function of the Tribunal that it was not required to actively assist the appellant in putting his case and it was not the responsibility of the Tribunal to carry out an inquiry in order to identify what the appellant's case might be. It was for the appellant to advance whatever evidence, or argument, he wished to advance to enable the Tribunal to decide whether he was a refugee within the meaning of 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 ('the Refugee's Convention'). 30 It does not seem to me that the Tribunal engaged in any jurisdictional error, nor has the appellant pointed to any relevant error on the part of the learned Federal Magistrate. 31 In my opinion the appeal should be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 6 December 2007 The Appellant appeared in person. Counsel for the First Respondent: P C Silver Solicitor for the First Respondent: Clayton Utz The Second Respondent entered a submitting appearance. Date of Hearing: 14 November 2007 Date of Judgment: 14 November 2007