SZNJJ v Minister for Immigration & Citizenship [2009] FCA 913

FEDERAL COURT OF AUSTRALIA

SZNJJ v Minister for Immigration & Citizenship [2009] FCA 913

Migration Act 1958 (Cth) ss 91R(3), 424A SZJGV v Minister for Immigration and Citizenship (2008) 170 FCR 515

SZNJJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 612 of 2009

BUCHANAN J

19 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 612 of 2009

GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNJJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE OF ORDER: 19 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 612 of 2009

GENERAL DIVISION

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNJJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 19 August 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of the People's Republic of China who arrived in Australia on 11 July 2008 and applied for a protection visa three days later. A delegate of the first respondent ("the Minister") refused the application for a protection visa on 11 October 2008. On 5 November 2008 the appellant applied to the Refugee Review Tribunal ("the RRT") established under the Migration Act 1958 (Cth) ("the Act") for review of the delegate's decision. In a decision handed down on 23 February 2009 the RRT affirmed the decision of the delegate not to grant a protection visa. 2 No judicial review is available with respect to the merits of the decision of the RRT or of the delegate. The only facility for judicial review open to the appellant, as a result of restrictions imposed by the Act, requires that the appellant establish jurisdictional error on the part of the RRT, either in the processes which it followed or in the decision which it made. In an application made to the Federal Magistrates Court of Australia ("the FMCA") filed on 25 March 2009, seeking to challenge the decision of the RRT the grounds for judicial review were stated as follows: "1. The Tribunal failed to act judicially and afford procedural fairness. 2. The Tribunal failed to comply with s 424A of the Act. 3. The Tribunal failed to comply with s 91R(3) of the Act." 3 Each of those grounds was rejected by the FMCA in a judgment given on 11 June 2009 (SZNJJ v Minister for Immigration and Anor [2009] FMCA 575). The appellant has now appealed to this Court. To succeed, he must show error in the judgment of the FMCA. In particular, he must show that the FMCA was in error in not identifying some jurisdictional error in the processes or decision of the RRT. The grounds of appeal to this Court were stated in the following terms: "1. The appellant contended in the FMC that the Tribunal in finding that the appellant was not member of the Christian, failed to take into account or have regard to the appellant's practice of Christianity in Australia following his arrival in Australia. FMC rejected this claim. The Court fell into jurisdictional error in rejecting this claim. 2. The Court erred in holding that the finding of the RRT that it did not have jurisdiction error of law." 4 The appellant made no further attempt in this Court to address either the question whether the RRT had committed jurisdictional error or whether the FMCA had committed any relevant error. He had not, as directed, filed written submissions in support of his appeal. At the hearing of the appeal he made only a very brief response to an invitation to say what he wished in support of his appeal. His brief remarks amounted only to an assertion that he faced persecution in China by reason of being Christian. 5 In the application for judicial review made to the FMCA the appellant alleged, but did nothing to particularise, three failures by the RRT to comply with its statutory duty. The appellant did not file any written outline of submissions in support of his application for judicial review in the FMCA either. However, he did attend court and answered questions about the grounds stated in the application for judicial review. Those matters are summarised in the judgment of the FMCA in the following way: "20. The Applicant did not file any written outline of submissions at Court but he attended the Court and was asked questions from the Bench about his specific claims. In respect of his first ground, which was a claim that the Tribunal failed to act judicially and afford procedural fairness, he said that the Tribunal asked him questions and he answered all of the questions. When asked why this was not fair the Applicant reiterated his claim that the Tribunal asked him questions and he answered all the questions. 21. In respect of the Applicant's second ground claiming that the Tribunal failed to comply with the provisions of s.424A of the Migration Act the Applicant was asked to provide details of the information about which the Tribunal should have written to him under the provisions of s.424A of the Act. The Applicant provided no details other than to say that the Tribunal did not write to him. 22. In respect of the Applicant's third ground alleging a failure to comply with s.91R(3) of the Migration Act the Applicant was unable to provide any further information as to what were the particulars of that claim. The Applicant was given the opportunity to address the Court in support of his case. He told the Court that he had met with the lawyer who provided him with legal advice under the Refugee Review Tribunal Panel Legal Advice Scheme, he complained that he had not received any written outline of advice from the lawyer." 6 It is clear, as the FMCA found, that there was no foundation provided for the allegation that the RRT had failed to accord the appellant procedural fairness. In my view that ground was correctly rejected. 7 The second ground for judicial review was that the RRT had failed to comply with the provisions of s 424A of the Act. Clearly, the appellant was unable to articulate the basis for any such alleged breach of statutory duty. No foundation for the suggestion appears from the appeal papers in the present case. None appears from the decision of the RRT. Section 424A of the Act requires the RRT to draw to the attention of an applicant for review of a delegate's decision certain matters which might be used adversely to the applicant's claims. An applicant's attention is required to be drawn to such matters in writing. It does not appear that any such obligation arose in respect of matters which were taken into account by the RRT. The appellant claimed to have been a committed Christian and at risk of persecution in China for that reason. He claimed to have attended an underground church in China and to have a bad record as a result with China's authorities. Those claims and a claim that he had been detained in China were discussed with him when he gave evidence before the RRT, as was information in the possession of the RRT about the response of the Chinese authorities to religious practice. The RRT recorded: "48. There is no objective evidence that the applicant is a practicing Christian or that he has a profile which could attract adverse attention from the Chinese authorities if he were to return to China. There is evidence which could lead the Tribunal to conclude that the applicant is not a reliable witness …" (Some reasons were then given.) 8 The Tribunal also said: "54. Throughout the hearing the applicant was most imprecise in regard to the actual circumstances, dates and times surrounding key events of relevance to his claims …" and: "60. Although the applicant demonstrated a very basic knowledge of Christianity which could have been obtained with the minimum of intellectual effort, the Tribunal is not satisfied that the applicant is now or was a Christian. It is not satisfied that upon his return to China he would be at risk of persecution on religious grounds now or in the foreseeable future. The Tribunal is satisfied that the applicant had no previous religious profile as a Christian activist and as it has found that he is not a Christian it is most unlikely that in the foreseeable future he would engage in Christian activities which could possibly bring him to the attention of the authorities. Consequently, his claimed fear of persecution now or in the foreseeable future on the grounds of his religion should he return to Chian are spurious." 9 Merits of the appellant's claim for a protection visa are not examinable, under the Act, on an application for judicial review. It is clear that the appellant's claims, so far as they related to his activities in China, were rejected because they were not established. That does not raise any jurisdictional issue which might be relied upon to challenge or set aside the decision of the RRT. Neither does it appear that there was any information taken into account by the RRT which it failed to bring to the appellant's attention, whether as required by s 424A of the Act or otherwise. It follows that the second ground in the application for judicial review was correctly rejected. 10 The third ground concerned the operation of s 91R(3) of the Act. That provision requires the RRT to disregard any conduct in Australia unless it is established that the conduct was not engaged in for the purpose of strengthening a claim to be a refugee. Normally, the effect of this provision is that an applicant for a protection visa faces a barrier before being able to rely, as evidence of religious commitment for example, upon the observance of religious or other practices in Australia. However, as observed by a Full Court in SZJGV v Minister for Immigration and Citizenship (2008) 170 FCR 515 ("SZJGV") at [22] (to which the FMCA referred) s 91R(3) is only engaged when the primary facts upon which its operation depends have been found to exist. 11 In its decision the RRT said: "57. The Tribunal has taken into account, in the context of his claims, the applicant's evidence in regard to his association with Christians while in Australia following his arrival on 11 July 2008. He told the Tribunal that while in Brisbane he attended two church services and on one occasion met a priest. He was unaware of where the churches were in Brisbane. Subsequently, he moved to Sydney and resided in Ashfield where there is a strong Chinese Christian community. Despite this, he told the Tribunal that he has not made contact with Christians in Sydney. 58. The Tribunal is not satisfied that the applicant did attend two church services in Brisbane as his claims were vague and lacked detail. He was unable to provide the Tribunal with the addresses of the churches, or even the suburb where they were situated. Furthermore, since his arrival in Sydney the applicant has given evidence that he has not sought the support of fellow Chinese Christians in Ashfield, despite his earlier claim that in China the Christian community were his 'brothers and sisters.' The Tribunal is not convinced that this is the conduct of a committed Christian who fears persecution on his return to China. 59. If his claims of persecution in China were true, the Tribunal would have expected that upon arriving in Australia, where freedom of religion is a right, the applicant would have exercised his right to worship precisely because they were circumscribed in China. His excuse for failing to do so was that he didn't know where the churches were in Ashfield or elsewhere. The Tribunal does not find this excuse convincing." 12 The RRT was not satisfied that the appellant had, as he claimed, attended church services in Brisbane. As to that aspect of his claims no primary finding of fact was made upon which s 91R(3) of the Act could operate. So far as the other elements of his conduct are concerned it is clear that the RRT regarded his lack of contact with Chinese Christians in Sydney as a matter which told against him and his claim to be a committed Christian. The RRT was clearly satisfied that this conduct (constituted by inaction as pointed out in SZJGV) was not engaged in to strengthen his claims. It was therefore not required to be disregarded by s 91R(3) of the Act. The appellant's claim that the RRT was in breach of its statutory duty in this respect also was correctly rejected by the FMCA. 13 The appellant has not demonstrated any relevant error in the judgment of the FMCA. He has not established, contrary to the conclusions of the FMCA, that the RRT made a jurisdictional error. The appeal must therefore be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.