SZJAX v Minister for Immigration & Citizenship [2007] FCA 1956

FEDERAL COURT OF AUSTRALIA

SZJAX v Minister for Immigration & Citizenship [2007] FCA 1956

SZJAX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1844 OF 2007

GRAHAM J

13 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1844 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJAX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J DATE OF ORDER: 13 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs fixed in the sum of $950. 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 1844 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJAX

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 13 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate on an application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 31 May 2006, handed down on 22 June 2006. 2 The learned Federal Magistrate ordered that the Application before him be dismissed and that the applicant pay the first respondent Minister's costs assessed in the sum of $3,500. The Amended Application which his Honour considered had been filed on 28 September 2006. 3 The Notice of Appeal to this Court filed on 11 September 2007 specified the grounds of appeal as follows: '1. The Tribunal did not consider my application for a protection visa according to S91R of the Migration Act 1958. 2. The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision from the Delegate; I was not given an opportunity to comment upon the reasons. 3. The Tribunal had bias against me and failed to consider my claims.' 4 I invited the interpreter who was assisting the appellant on the hearing of the appeal to interpret the grounds as recorded in English in the Notice of Appeal into Mandarin for the benefit of the appellant. I then asked the appellant to address me separately in respect of each of the separate grounds and also to indicate whether there was anything further that he wished to add. 5 In relation to the first ground I invited the appellant to identify what legal obligation fell upon the Tribunal by virtue of s 91R of the Migration Act 1958 (Cth) ('the Act') which the Tribunal had failed to observe. The appellant, after having subsections (1) and (2) of s 91R interpreted for him, identified that he placed reliance upon s 91R(2)(a) of the Act. Read in context, that paragraph relevantly provided: '91R(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: … (b) the persecution involves serious harm to the person; … (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; …' 6 The appellant was born in Fujian in the People's Republic of China on 23 July 1980. On 7 November 2002 he secured a passport which was issued to him in Fujian. On 24 June 2004 the appellant left China and travelled to the Solomon Islands, where one of his uncles lived. 7 On 13 October 2005 the appellant obtained a temporary business visa in Honiora permitting him to travel to Australia. He proceeded to travel to Australia, arriving on 4 December 2005. 8 On 30 December 2005 the appellant applied for a Protection (Class XA) visa. The Minister's delegate refused that application on 17 February 2006. On 20 March 2006 the appellant applied to the Tribunal for review of the Minister's delegate's decision. 9 By a letter dated 4 April 2006 the Tribunal informed the appellant that it was unable to make a decision favourable to him on the information that was then available to it. It invited him to a hearing so that he could give oral evidence and present arguments in support of his claims. The appellant attended a hearing before the Tribunal on 9 May 2006. On 31 May 2006 the Tribunal decided the application for review adversely to the appellant. That decision was handed down on 22 June 2006, the decision being to affirm the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa. The appellant then instituted the proceeding referred to earlier in the Federal Magistrates Court of Australia. 10 Under s 65 of the Act the Minister, after considering a valid application for a visa, is obliged to deal with the application in one of two ways. Section 65(1) relevantly provides: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 11 The relevant criterion prescribed by the Act for the issue of a protection visa is to be found in s 36(2) of the Act, which relevantly provides: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …' 12 The Refugees Convention is, of course, a reference to 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, collectively referred to as 'the Refugees Convention'. Relevantly, Article 1A of the Refugees Convention provides: 'For the purposes of the present Convention, the term "refugee" shall apply to any person who: (2) … owing to well-founded fear of being persecuted for reasons of ... religion ... is outside the country of his nationality and … owing to such fear, is unwilling to avail himself of the protection of that country; …' 13 In the Application for a Protection (Class XA) visa the appellant answered a series of questions by inviting reference to an attachment which provided as follows: 'I was born in Fujian PRC and from a Christian family. Followed my parents (sic), I participated in Christian activities. When I was still very young, I already knew that our activities were not allowed by the government. Our activities were related with underground church. Government always detains members of our church. Some of them have been sentenced to imprisonment. We cannot enjoy freedom of religion in China. In March 2004, when we were having religious gathering at our friend's home, my parents and I were all detained by the police. My uncle tried to get us out. My father asked my uncle to help me first as we did not have much money. My uncle helped me out by paying bribe money to the government officer. As soon as I was released and got my passport, I left China for Solomon Islands. My parents were sentenced to two year (sic) imprisonment in November 2004. As I could not get protection from Solomon Islands, I applied my visa (sic) to come to Australia for protection. I will face persecution from the Chinese authorities on my return to China. My parents are still in prison, suffering persecution from the Chinese authorities. Police has got information that I had left China with the help of a government official, and that government official is at a court case now. I will be imprisoned on my return to China.' 14 No other material was provided by the appellant in support of his application as considered by the Minister's delegate, nor was any further evidence provided for consideration by the Tribunal beyond the answers given by the appellant at the hearing before the Tribunal on 9 May 2006. 15 When the proceedings under appeal were before the learned Federal Magistrate there was no tender of the tapes recording what was said at the Tribunal hearing, nor was a transcript tendered. One can discern from the 'Statement of Decision and Reasons' of the Tribunal something of the evidence which was provided by the appellant in supplementation of what he had claimed in his Protection (Class XA) visa application. In that section of the decision headed 'Tribunal Hearing (9 May 2006)' the following, amongst other things, appeared: 'The Applicant claimed that he will be persecuted because of his religion. His father and uncles are all Christian. The Applicant was bullied by his school classmates because of his religion. He referred to his religion as that of "Shouter". …' Under 'FINDINGS AND REASONS' the Tribunal noted: '… During his evidence before the Tribunal, the Applicant claimed that he was a member of the Shouters since he was a young child. For many years he attended gatherings on Friday evenings and Sunday mornings. …' 16 It is not entirely clear from the reasons of the Tribunal whether the appellant's claim to refugee status was for reason of his personal religious conviction or for an imputed religious observance flowing from his parents' religious activities. 17 In the course of the Tribunal's Statement of Decision and Reasons, it said: 'I asked the Applicant how he practiced his religion. He stated that he did not understand much about the religion but his parents are active in all the religious activities. He said that is why he is viewed as a Shouter.' 18 Viewing the appellant's case as one founded upon his own personal Christian conviction, it is appropriate to note the following passage from the reasons of the Tribunal: 'I asked the Applicant to tell the Tribunal what his favourite Bible story was. He replied that he had already explained that he knew little about the religion. I asked if he knew anything about the Bible. He stated that he knew that Jesus was born in the year 000 in a horse warehouse and he passed away on the Mountain after being placed on a cross. He stated that Jesus came back alive after three days and then spread God's message for three years. Jesus travelled around with his twelve disciples after he returned.' 19 The Tribunal also said: 'I mentioned to the Applicant that it seemed he was not really committed to the religion. He said he believed in it but knew little about it. …' 20 Later, the Tribunal repeated this observation in the passage: 'He constantly stated throughout the hearing that he did not know much about the religion. When the Tribunal put to the Applicant that he did not seem to be very committed to the religion, he said that he believed in it, but knew little about it. …' 21 If one were to view a person's religious convictions by reference to a claim that they were Christians, one might have thought that the matters of paramount importance were those matters recorded in confessions of faith such as the Nicene Creed, and that knowledge of biblical stories, while useful in ascertaining the degree of a person's involvement in a given church, would not be in any way determinative of a person's belief. 22 I note that in Walt v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [28] a Full Bench of this Court recorded its acceptance of an observation of Gray J in Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at [16] that it was not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. One might have thought that the appellant's knowledge of the birth of Christ, his death on a cross and his resurrection and ministry would have been telling in favour of a finding that he was a Christian. 23 The appellant submitted that the Tribunal had fallen into error in that it did not assess his application according to law. He says that he explained himself clearly to the Tribunal but the Tribunal could not understand what he was saying. He says that his case was that he had been the subject of discrimination because of his family background and it was nothing to do with his personal belief in matters of religion. 24 When the matter was before the learned Federal Magistrate he raised the question of whether or not the Tribunal may have fallen into jurisdictional error by not considering the possibility that the applicant might be the subject of persecution 'not for his religion, but because that religion was imputed to him', referring to the religious activities of his parents as Shouters. His Honour referred to the submissions of a distinguished solicitor at the Australian Government Solicitor, Mr Markus, in this regard. He said at [2007] FMCA 1517 at [11]: '11. I suggested to Mr Markus that this could be consistent with the applicant not knowing very much about the religion but he argued forcefully, and I think persuasively, that the Tribunal was entitled to come to the view that the applicant's lack of knowledge about the religion which he had been so closely associated with over such a long period of time allowed it to conclude that none of his evidence was credible, including evidence as to the religious activities of his parents. In this way there would be no imputation because there was clearly no association. It is to be remembered that in addition to the Tribunal's concerns over the applicant's apparent lack of knowledge of the Shouters' observances, there was the very serious matter of the story about the passport which tended to suggest to the Tribunal that the applicant was not a witness of truth.' 25 The learned Federal Magistrate was not satisfied that the Tribunal fell into error by failing to consider the applicant as a person who feared persecution on the basis of imputed religious opinion. The Tribunal concluded that the appellant was not a credible witness in respect of his claims for protection. In its reasons for decision the Tribunal said, amongst other things: '… The Applicant's responses during his evidence before the Tribunal were not impressive. His evidence was at times implausible, vague, unconvincing and contradictory. … … The Applicant was constantly vague in his replies when questioned about details relating to the religion he claims to have been involved with in China. This vagueness in my view was not due to any claimed inability to recall matters. His demeanour gave every impression of a person who was attempting to come up with answers on the spot without regards (sic) to any real history. …' 26 In relation to the appellant's own religious observance the Tribunal noted that: '… When asked if he had joined any Christian group or attended any Christian Church since arriving in Sydney, the Applicant stated that because he has no friends and is not familiar with his surroundings, he did not become involved in any Christian activities.' 27 The most telling matters against the appellant's case were, firstly, that he claimed to have worked in China until approximately May 2004 before departing for the Solomon Islands. The problem with this evidence was that he had contended that his parents and himself had been detained by the police in March 2004. This was a significant inconsistency in the appellant's case. When confronted with the inconsistency he suggested that he had actually ceased to work in China in February rather than May 2004. 28 The second inconsistency to be found in the appellant's evidence was that the appellant had secured his passport upon his release from detention in mid-2004 following the payment by his uncle from the Solomon Islands of a bribe to a government officer. This evidence does not sit comfortably with the fact that when he travelled to Australia he did so using a passport which had been issued to him in the People's Republic of China on 7 November 2002. 29 It was perfectly open to the Tribunal in the circumstances to make a finding, as it did, that the appellant was not a credible witness and that the appellant was not a credible witness in respect of his claims for protection. The Tribunal said: 'I do not accept that the Applicant is a member of the Shouters group as claimed. As a consequence, I do not accept that his parents and he were detained because of their religious beliefs. I do not accept that he was forced to leave China because of a fear of persecution from the Chinese authorities because of his religious beliefs.' 30 Given the adverse findings made by the Tribunal in respect of the appellant's credibility, it was open to the Tribunal to take the view that it could not accept the claims made by the appellant concerning his parents' religious observance and their alleged detention. 31 It does not seem to me that the Tribunal fell into error by failing to give the appellant particulars of any information to which s 424A(1) of the Act applied. 32 It does not seem to me that the Tribunal fell into error by failing to consider the appellant's application for a Protection (Class XA) visa, or by treating the appellant's claims in respect of persecution otherwise than in accordance with the requirements of the Act, including s 91R as alleged. Nothing has been said to demonstrate that the Tribunal demonstrated any actual bias towards the appellant nor is there any material to suggest that there was any basis for a claim of apprehended bias. 33 In respect of ground 2 in the Notice of Appeal the appellant's submissions included words to the effect: 'I said everything clearly and those are the facts – they [referring to the Tribunal] simply did not believe me. Of course I wanted to appeal.' 34 The appellant has failed to demonstrate that the Tribunal committed any jurisdictional error or that the learned Federal Magistrate fell into error in the manner in which he addressed the application before him. What the appellant seeks, in effect, is a merits review which neither the learned Federal Magistrate nor this Court may provide. 35 In my opinion the appeal is without merit and should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.