SZILL v Minister for Immigration and Citizenship (No 2) [2007] FCA 1957

FEDERAL COURT OF AUSTRALIA

SZILL v Minister for Immigration and Citizenship (No 2) [2007] FCA 1957

SZILL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1835 OF 2007

GRAHAM J

22 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1835 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZILL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J DATE OF ORDER: 22 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant to pay the respondent Minister's costs fixed in the sum of $3,300. 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 1835 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZILL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 22 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Barnes FM handed down on 21 August 2007, dismissing an application for constitutional writ relief in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 18 January 2006 affirming a decision of a delegate of the Minister to refuse the appellant a Protection (Class XA) visa. 2 Under s 65(1) of the Migration Act 1958 (Cth) ('the Act') the Minister is to grant a visa for which a valid application has been made if satisfied that, amongst other things, 'the other criteria for it prescribed by this Act' have been satisfied. If not so satisfied the Minister is required by s 65(1)(b) of the Act to refuse to grant the visa. 3 The Act prescribes as the relevant criterion for the grant of a protection visa that the applicant for the visa is 'a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee's Convention [a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951] as amended by the Refugees Protocol [a reference to the Protocol relating to the Status of Refugees done at New York on 31 January 1967]'. I will refer to the Refugees Convention as amended by the Refugees Protocol as 'the Refugees Convention.' 4 A person falls within the expression 'refugee' if that person, owing to a well-founded fear of being persecuted for reasons of, amongst other things, religion, is outside the country of his nationality and, owing to such fear, is unwilling to avail himself of the protection of that country. 5 The appellant was born in Xi'an in the province of Shaanxi in the People's Republic of China on 29 January 1958. He claims to have a well-founded fear of persecution for reason of his religion, he claiming to be a Christian. 6 The appellant claimed that he was baptised on 1 June 2002 and that he became involved in the activities of a Bible study group, which he ended up leading. He claims that he has been a regular attendee at church services since his arrival in Australia on 10 August 2005. 7 In his application for a Protection (Class XA) visa he claimed that in August 2005 he had to go to Guangzhou because one of his fellow Christians, a Mr Jian He Weng, and two other persons in his group, were subjected to investigation by the PSB. 8 He said that he was advised by a person, whom he described as a devout Christian and whom he referred to as Uncle Lin, to leave for Guangzhou and shortly thereafter he arranged to go overseas through a secret friend who worked in the PSB. 9 Following his arrival in Australia in August 2005 he said that he was informed by a Mr Xiu Hui Bai that Uncle Lin and the three other key members of the underground church with whom he had worshipped had been arrested because of a confession proffered by Mr Jian He Weng. He said that Mr Bai had confirmed that he had become the target of the PSB because he had been regarded as one of the key members in the underground church. 10 The appellant applied for a Protection (Class XA) visa on 23 September 2005. That application was refused by the Minister's delegate on 27 October 2005, whereupon the appellant applied for review of the Minister's delegate's decision by the Tribunal on 28 November 2005. 11 Following a hearing before the Tribunal on 17 January 2006 a decision was reached by the Tribunal on 18 January 2006 to affirm the decision of the Minister's delegate, that decision being handed down on 31 January 2006. 12 The appellant's application for constitutional writ relief in the Federal Magistrates Court of Australia was filed on 2 March 2006 and superseded by an Amended Application on 5 June 2006. 13 On 21 August 2007 Barnes FM heard the Amended Application and dismissed it, ordering the appellant to pay the respondent Minister's costs, fixed in the sum of $4,300. 14 By Notice of Appeal dated 11 September 2007, the appellant appealed to this Court from the judgment of the learned Federal Magistrate. The Notice of Appeal suggested that the judgment of the Federal Magistrate had been given on 21 April 2006. The appellant informed me that this was the product of a mistake by a friend, who filled in the form for him, and that the date of the judgment under appeal should have been 21 August 2007. 15 The grounds of appeal and particulars thereof were expressed as follows: 'GROUNDS 1. The learned Federal Magistrate erred in law. 2. The learned Federal Magistrate was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings PARTICULARS 1. The Tribunal failed to assess my claims, fairly or properly; and the questions was given by the Tribunal is unfair (sic) and my claims as well as my answer have not been treated fairly. 2. The Tribunal failed to comply with his (sic) obligation under s.424A(1) of the Act. 3. The Tribunal failed to comply with its obligations under s425 of the Act. 4. The Tribunal has, apparently, exceeded its powers and thus commits a jurisdictional error, because The Tribunal has identified a wrong issue, relies on irrelevant material and made an erroneous finding in determining my review application. 5. The Tribunal used a wrong test to assess my credibility:' 16 The appellant, who has appeared in person before me with the assistance of an interpreter, said in support of particular 1 that the Tribunal had rejected the appellant 'on the spot' and didn't give him an opportunity to explain the situation, which he thought to be unfair. He said that the reasons for the Tribunal's decision had been interpreted for him and he was familiar with what had been said. He professed that he was a true Christian and that he was a committed Christian, who went to church every week. He said that he risked persecution in China, if he were to return. He said that he could not go to church in China, that is why he came to Australia, and the Tribunal didn't give him a chance to 'rebut'. 17 In respect of particular 2, the appellant said that he was conversant with the terms of s 424A(1) of the Act. When asked to indicate the manner in which the Tribunal had failed to comply with that section he again said that the Tribunal didn't give him a 'chance to rebut'. Again he said that the Tribunal decided the matter on the spot. He was unable to demonstrate any relevant non-compliance with s 424A(1) on the part of the Tribunal. 18 In respect of particular 3 he again said that he was conversant with the terms of s 425 of the Act, which had been interpreted and read to him. When asked in what way the Tribunal had failed to comply with s 425 of the Act, the appellant said that the Tribunal had refused his application. 19 In relation to particular number 4, the submission of the appellant was that the Tribunal didn't offer him a 'chance to rebut', it just rejected his application. When asked what he meant by the failure of the Tribunal to afford him a 'chance to rebut', he simply said that when he wanted to say something to the Tribunal he was refused an opportunity to do so and he didn't have a chance to say things that he wanted to say. He readily acknowledged that when the proceedings were before the Federal Magistrates Court of Australia he did not tender or seek to tender tapes of the Tribunal hearing or a transcript of proceedings before the Tribunal to support his submission. When asked why he hadn't done this if he wished to argue that he had been refused an opportunity to be heard by the Tribunal, his response was to the effect that the learned Federal Magistrate had not asked him to do so. 20 In respect of particular 5, all that the appellant put to the Court was that the decision of the Tribunal was wrong. He had nothing further to say in support of his Notice of Appeal. 21 It seems to me that the Tribunal dealt with the appellant's application on three distinct bases. 22 Firstly, it found that he was not a Christian in China and that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason, were he to return to China, on the basis of his religion. 23 The Tribunal rejected an assertion that the appellant had been detained for a week in January 2005 because he was suspected of being involved in the religious activities to which mention has already been made. 24 The Tribunal concluded that the appellant was endeavouring to embellish his claims for a protection visa and was not a credible witness. Nothing further was said to support this conclusion. The Tribunal seems to have applied a domino approach of reasoning after finding that the appellant was not a Christian in China. The Tribunal proceeded to say: '… It follows that the Tribunal does not accept the other claims that flow from this including that on 9 September 2005, after his arrival in Australia, Mr Xiu Hui Bai informed him that Uncle Lin and three others had been arrested he had become the target of the PSB "because I have been regarded as one of the key members in the underground church"; that he leads a Bible Study Group in China; that he distributed religious material; that he has been persecuted in China because he was a member of the underground church and he would be persecuted; and that if he returned to China he would surely be arrested and persecuted for a Convention related reason.' (emphasis added) 25 It is sometimes troubling to read the findings and reasons of the Tribunal in relation to determinations of a person's faith. The Tribunal on this occasion recognised the difficulties which are experienced, saying: '… the Tribunal accepts that a person's fai th (sic) is a very personal matter and that different people have different levels of knowledge, interpretation and understanding about what their faith means to them.' 26 From the findings and reasons of the Tribunal, it is apparent that the Tribunal put to the appellant that it found that his claims in his protection visa application of being a Christian did not reveal any understanding, knowledge of, or commitment, to the Christian faith. The appellant was then apparently asked a number of questions which seem to have elicited responses indicating that the gospel message was to believe in Jesus, that Christians believe in Lord Jesus and that the appellant had preached the gospel to another person, being Weng Jian He. The Tribunal was satisfied from the 'Applicant's vague and unsupported claims that reveal no substantive knowledge of the Bible or more importantly little knowledge and awareness of the basic tenants (sic) of the Christian faith' that he was not a Christian in China and that he had not had any involvement with an underground church or Bible study group. 27 For reasons which will become clear, it is unnecessary to say any more about the conclusions reached by the Tribunal as to the appellant's profession of the Christian faith. This is so because the second basis upon which the Tribunal reached its decision was that he had been able to leave the country freely on 9 August 2005, having obtained a passport from the People's Republic of China on 15 April 2005 after he had been involved in his religious observance and in the activities of his Bible study group for some years. The Tribunal said in its reasons: '… The Tribunal put to him that if he was of any interest to the authorities in China, they would not let him have a passport. The Applicant claimed that his home was in Xi'an and Uncle Lin organised his passport for him. Asked about being allowed to leave China, he claimed he had become a target of the authorities as they think he is a religious leader. The Tribunal … is satisfied that he would not have been issued a Chinese passport issued in his name with his date of birth and photograph in it on 15 April 2005 if he was of any interest to the Chinese authorities. Further, the Tribunal accepts that the Applicant was able to leave China on this passport on 9 August 2005 without being detained, interrogated or even questions (sic)….' For this reason, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. 28 The third basis on which it would appear that the Tribunal may have concluded that the appellant did not have a well-founded fear of persecution was that it put to the appellant independent country information about religion and the Christian church in China which indicated that the Constitution provided for freedom of religious beliefs and that there had been an explosion of Christian observance in China. The Tribunal included in the 'CLAIMS AND EVIDENCE' section of its decision the following: '… In view of this and the significant growth in the Christian church in China, the Tribunal asked the Applicant why he was afraid because he claimed to be a Christian. In reply, the Applicant claimed that in China they believe that communism is in the forefront and fear of God is less important. However Christians believe fear of God is the most important. Therefore the authorities want them to believe in communism first but they fear God.' 29 It does not seem to me that, given the second and third bases on which the Tribunal addressed the matter, it could be said that the Tribunal committed a jurisdictional error. 30 Plainly, it is not open to the Court to allow the appellant to have a merits review of the Tribunal decision of which he complains. In my opinion, the appeal should be dismissed. 31 I order the appellant to pay the respondent Minister's costs fixed in the sum of $3,300. 32 I think I should make an observation that the amount which I have ordered is higher than the amount normally ordered on the disposition of appeals such as the present. However, this appeal is unusual in that it was fixed for hearing on 13 November last and the appellant failed to appear. Following a course which I suggested should be followed, I declined to dismiss the appeal under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). As it transpires, the appellant was in Perth at the time when he was due to be before the Court in Sydney so that in this particular case there have been two days' costs incurred which should be the subject of the costs order. I am satisfied that the amount of $3,300 is reasonable. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.