FEDERAL COURT OF AUSTRALIA

SZFSU v Minister for Immigration and Multicultural Affairs

[2006] FCAFC 126

SZFSU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 617 OF 2006

GYLES, STONE, YOUNG JJ

16 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent, fixed at the sum of $2,500.00.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

GYLES J:

1                     I agree with the order proposed by Young J and with his reasons.

Associate:

Dated: 21 August 2006

REASONS FOR JUDGMENT

STONE J:

2                     I agree with Young J’s reasons for decision and proposed orders.

Associate:

Dated: 22 August 2006

REASONS FOR JUDGMENT

YOUNG J:

3                     This is an appeal against the decision of Pascoe CFM dated 23 February 2006 dismissing an application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) which was handed down on 11 January 2005. The Tribunal’s decision affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection visa.

4                     The appellant arrived in Australia on 24 June 2004 on a Malaysian passport. On 10 August 2004, he lodged an application for a protection visa. In that application, the appellant claimed to be a national of the People’s Republic of China. On 15 September 2004, the Minister’s delegate rejected the application. The appellant sought review of the delegate’s decision by application to the Tribunal dated 11 October 2004. The appellant attended the Tribunal hearing on 13 December 2004 and gave oral evidence through a Mandarin speaking interpreter.

5                     In his application for a protection visa, the appellant claimed he was from Jiangjing Town, Fuqing City in Fujian Province, China. He said that he had been a practicing Christian and that, with his uncle, he had been actively involved in a construction firm whose main purpose was to spread the gospel, establish religious groups and raise funds for the underground church. The appellant claimed that in October 2000, he was arrested with about eight others and interrogated. The appellant claimed that he was released after a month. The appellant said that in April 2002 the construction team organised an Easter celebration which was discovered by local officials and reported to the authorities. Those present at the celebration were arrested, but the appellant was not present at that time. He claimed that he was, however, questioned on several occasions because he was a member of the construction team. The appellant claimed that from May 2002 the appellant’s uncle helped him establish a new construction team, as the old team had been disbanded. The appellant said that for two years he set up bible study groups and gathering places, and organized the distribution of religious propaganda material. During this period he said he had been questioned and threatened by the police many times. The appellant claimed that he was arrested by local police in March 2004 for distributing religious material to students and teachers at a school. He was released about a month later after his uncle paid a bribe. The appellant then stayed at a friend’s place in Xiamen before travelling to the Philippines, then Indonesia, and finally to Australia. The appellant said that his wife, sisters and uncle had been investigated by the authorities because he was regarded as a ‘major activist’ in the underground Christian church. The appellant contended that, consequently, he feared persecution if he were to return to China.

THE decision of the tribunal

6                     The appellant attended the Tribunal hearing and gave evidence to the Tribunal through the interpreter. The appellant confirmed to the Tribunal that he had no difficulty understanding the interpreter and no objection to using her services. The Tribunal made various inquiries of the appellant about the tenets of his faith, his activities in China, and the circumstances of his leaving China.

7                     After carefully reviewing all of the material presented by the appellant, and having regard to other relevant evidence, the Tribunal concluded that it was highly implausible, and did not accept, that the appellant had been an activist within an underground church in China. Further, the Tribunal did not accept that the appellant was suspected by the authorities of being a religious activist, or that he was ever questioned or detained for that reason. The Tribunal was satisfied that the appellant’s practice of his Christian faith, which was expressed by the appellant in simple terms, could be accommodated within one of the many official Protestant churches in Fujian province. The Tribunal therefore concluded that the appellant does not have a well-founded fear of persecution for a Convention reason and affirmed the decision under review.

The decision of the federal magistrates COURt

8                     In the Federal Magistrates Court, the appellant argued that the Tribunal had made a legal error in reaching its decision and that the appellant was therefore denied natural justice. The appellant did not particularise any of the grounds contained in his application. In the circumstances, the Chief Federal Magistrate noted that it was appropriate to give the appellant every opportunity to expand on his grounds at the hearing, but that the appellant was not able to establish error in the Tribunal’s decision. The Chief Federal Magistrate concluded that the appellant was seeking an impermissible merits review of the Tribunal’s decision.

9                     The Chief Federal Magistrate found that the findings of the Tribunal were reasonably open to it, and that the Tribunal’s rejection of the appellant’s claims was based largely on adverse credibility findings. The Chief Federal Magistrate said that the Tribunal’s rejection of the appellant’s claims is the function of a primary decision maker par excellence, citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J. No error by the Tribunal was found to have been established. The application was accordingly dismissed.

Disposition of the appeal

10                  On appeal from a decision of the Federal Magistrates Court, this Court is not required to embark upon a re-hearing of the facts or the evidence heard by the Tribunal: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4].

11                  The grounds of appeal do not reveal any error of principle by the Chief Federal Magistrate.

12                  On the hearing of this appeal, the appellant appeared in person and was assisted by a Mandarin speaking interpreter. The appellant was invited by the Court to make submissions to identify any error that he claimed had been made by the Federal Magistrates Court in its decision. The appellant was unable to do so. Instead, he made a series of complaints about the fact finding process undertaken by the Tribunal.

13                  I agree with the Chief Federal Magistrate that it was open to the Tribunal to hold that it was satisfied that the appellant did not have a well-founded fear of persecution for a Convention reason. Fact finding, including findings as to credibility, are the function of the primary decision-maker: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham at 423 [67]. The Tribunal’s decision was based on a specific analysis of the appellant’s claims and evidence, not merely on country information. The Tribunal inquired into the appellant’s case by examining his claims at the hearing and by having regard to relevant country information. It was not under any duty to inquire further: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 22 [43].

14                  No appealable error is demonstrated. Accordingly, the appeal should be dismissed with costs.

Associate:

Dated: 21 August 2006