FEDERAL COURT OF AUSTRALIA

SZHLN v Minister for Immigration and Citizenship [2007] FCA 605

SZHLN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 244 OF 2007

STONE J

30 APRIL 2007

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Minster for Immigration and Citizenship be substituted for the Minister for Immigration and Multicultural Affairs as first respondent.

2.                  The appeal be dismissed.

3.                  The appellant pay the costs of the first respondent.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Federal Magistrates Court delivered on 30 January 2007.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal refusing the appellant’s application for a protection visa; [2007] FMCA 53.

Protection visa application

2                     The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 11 February 2005, and lodged his application for a protection visa on 25 February 2005.  The claims made in his application may be summarised briefly.

3                     The appellant says he was a member of the Shouters, a Christian group subject to persecution by the Chinese authorities.  He was introduced to the Shouters by Mr Xia Li Chen, a business associate and joined the group while living in Fujian.  He began to study the Bible in 1997 and was baptised in July of that year.  The appellant claimed that his business with Mr Chen was a front for the distribution of religious propaganda.  

4                     In February 2000, while delivering Bibles and Shouter propaganda in a small village, policemen from the Public Security Bureau (PSB) and officials from the Religious Affairs Office conducted a raid.  Mr Chen was arrested but the appellant managed to escape to the home of another associate, Mr Li.  While he was in hiding, the police went to his home in order to arrest him.  Finding him absent, they conducted an intensive search of his home, and took his wife to the local PSB headquarters where she was interrogated.  

5                     The appellant remained at Mr Li’s home for three months, during which time his family was continually threatened by the police.  In order to avoid endangering Mr Li the appellant relocated to Danshui, in Guandong, where he purchased a residential registration in a false name and became a ‘fresh person’.  He was afraid to stay too long in Danshui and searched for work across eastern China.

6                     Although he retained telephone contact with Mr Li, he did not make contact with the Shouters in Guandong until early 2003.  Mr Hui Chun Zhang, a local Shouter leader helped him to contact his wife, and helped her relocate to Danshui.  In 2004, the appellant assisted Mr Zhang in smuggling religious materials from Singapore and Malaysia into China.  In January 2005, Mr Li was arrested by the PSB, and under interrogation revealed that the appellant had been assisting Mr Zhang, and that he and his family were in Guandong.  The appellant was able to leave China using his false name in early February 2005.

Proceedings before the Tribunal

7                     In his application for review, the appellant provided a letter dated 5 May 2005 in which he reasserted the claims made in his protection visa application.  The appellant was invited to attend a hearing before the Tribunal, which he attended and where he was assisted by a Mandarin interpreter.  At this hearing the appellant was questioned on aspects of his claims.  The hearing before the Tribunal is discussed in more detail below.

Proceedings Before the Federal Magistrates Court

8                     The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  He claimed first, that there had been an error of law in the decision of the Tribunal constituting jurisdictional error and second, that there had been procedural error in the decision of the Tribunal constituting a denial of natural justice.

9                     The Federal Magistrate summarised the appellant’s grounds at [8] of his reasons.  It is not necessary to repeat those grounds here.  It is sufficient to note that his Honour dealt with each ground in turn and found no jurisdictional error on the part of the Tribunal.  

This Appeal

10                  In this Court, the appellant relied on two grounds of appeal claiming, first that the Federal Magistrate erred in law and second, the learned Federal Magistrate was wrong in finding the Tribunal ‘acted properly in its findings’.  In the particulars contained in the notice of appeal the appellant takes issue with the Tribunal’s findings on the merits and also alleges that the Tribunal failed to comply with ss 424A(1) and 425 of the Migration Act 1958 (Cth).

11                  At the hearing of the appeal the appellant submitted, apparently for the first time, that he had never received the reasons for the Tribunal’s decision.  It is clear from the appeal book however, that the reasons were sent to his migration agent who was the authorised recipient of his correspondence and that the application to the Federal Magistrates Court made detailed reference to those reasons.  Moreover, the appellant admitted that he had signed the application for judicial review and I am satisfied that they were received by his agent.

12                  All the other submissions made by the appellant were directed to taking issue with the findings of fact made by the Tribunal.  It is difficult for litigants in person who have no legal training and little if any English to understand that neither the Federal Magistrates Court nor this Court has jurisdiction to review the Tribunal’s findings of fact.  The distinction between errors of fact and law, especially jurisdictional errors, is notoriously difficult even for sophisticated legal practitioners so it is not surprising that litigants in this position are confused and frustrated and feel as if they have not been given a fair hearing.  It is an unsatisfactory outcome for all concerned but not one that this Court is competent to address. 

13                  In addressing the appellant’s grounds of appeal, I propose to deal first with the appellant’s claims that the Tribunal failed to comply with relevant statutory provisions. 

Section 425 of the Migration Act

14                  Section 425(1) of the Migration Act provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

15                  The appellant claims that the Tribunal did not ensure that he understood ‘completely and clearly’ the issues arising in relation to the decision under review.  It is not in contention that the Tribunal invited the appellant to appear and gave him the opportunity to put his claims.  The Tribunal’s reasons outline in some detail the exchanges between the appellant and the Tribunal.  It is apparent that there was some mutual irritation and this may have caused the appellant to feel frustrated and confused.  The Tribunal referred to the appellant’s conduct during the hearing describing it as ‘aggressive and irritated’.  The Tribunal noted that the appellant complained that he had not been given enough opportunity to explain himself but added that when any such complaint was made the Tribunal member,

... read back to the applicant the notes the Member has made concerning his claims to indicate to the applicant that the Tribunal has taken note of what he has said.  The Tribunal also then asked on each occasion if the applicant wished to say or add anything further to his claims and gave the applicant an opportunity to make further submissions.  The applicant took up the opportunities. 

16                  The appellant did not present any evidence to the Federal Magistrate or at this appeal to suggest that the Tribunal’s account is not correct.  The appellant also complained that the inadequacies of interpretation before the Tribunal interfered with his ability to put his case.  I accept that severe deficiencies in interpretation can nullify the right to appear under s 425; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723.  In the absence of evidence to support this claim I am not able to accept this submission.  I am not satisfied therefore that there was any breach of s 425. 

Section 424A(1) of the Migration Act

17                  In claiming that the Tribunal was in breach of s 424A(1) by failing to give him copies of the independent country information that formed part of the reason for the decision, the appellant fails to take account of s 424A(3)(a).  The subsection provides that the obligation imposed under s 424A(1) does not apply to information ‘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’.  The Federal Magistrate relied on SZDCC v Minister for Immigration & Multicultural Affairs [2006] FCA 1327 at [7] as authority for the proposition that independent country information falls within this exclusion.  His Honour was right to do so and this ground of appeal must be rejected.

Jurisdictional error

18                  As noted above, with the exception of the alleged breaches of statutory obligations which I have discussed, the particulars set out in the notice of appeal all appear to take issue with the Tribunal’s findings of fact.  It is well settled that neither the Federal Magistrates Court not this Court is entitled to review the findings of fact or to substitute its own views for those of the Tribunal.  Bearing in mind however that the appellant is self-represented, does not have a high level of education and has little if any command of English I have carefully considered the Tribunal’s reasons to see if in making those findings the Tribunal made a jurisdictional error such as taking into account an irrelevant consideration or failing to take a relevant consideration into account; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ at [82].

19                  Fundamental to the appellant’s claims was his claim to be a Christian and to have been involved in studying the Bible and in distributing Christian literature, specifically the Shouters material, since 1997.  The Tribunal questioned him about his understanding of Christianity and of the Bible and concluded that the appellant lacked basic knowledge of ‘the Bible and basic Christian ideas such as the Ten Commandments’.  As a result not only was the Tribunal not satisfied that the appellant was a Christian but also had doubts about his overall credibility.

20                  The Tribunal found that, even if the appellant were given the benefit of the doubt in relation to his claim to be a Christian this would not necessarily assist his case.  As the Tribunal explained:

This is because the central issue is not whether the applicant was a Christian.  As noted earlier in this decision, the Chinese Government permits Christians to belong to recognised churches in China.  The issue is whether the applicant as a Christian, was a member of the Shouters underground church; a related issue is whether the applicant faces persecution in China for his association with the church.

21                  The Tribunal concluded that the appellant had not provided any credible evidence of his membership of the Shouters church.  He had not provided any evidence other than his ‘bare claims’, was unable to describe the Shouters peculiar technique of praying, and initially said that his congregation had no name, though he later named it the ‘Hu Hung group’.  The Tribunal observed that the appellant’s testimony was ‘both inconsistent and gave the appearance of having been fabricated to support his claims’.

22                  The Tribunal also rejected the appellant’s account of police harassment in China.  This conclusion partly followed from the conclusion that the appellant was not a Christian and, in any event, not a member of the Shouters church.  It also partly followed from the Tribunal’s assessment of the appellant’s evidence concerning his movements between 2000 and 2005.  The Tribunal  regarded the appellant’s claim to have had no fixed address during that period as inconsistent with his evidence that the police had been able to track down both him and his wife and harass his wife.

23                  The transcript of the hearing before the Tribunal was not in evidence before the Federal Magistrate or in the appeal.  Without the transcript it is difficult to get the full flavour of the hearing and the extent to which the relevant issues were canvassed.  Even on the Tribunal’s account, however, the questioning seems perfunctory and the conclusion harsh.  Nevertheless, whether this Court would have asked different questions, would have had a different view of the probative value of the issues explored or would have come to a different conclusion to the Tribunal are not relevant considerations in this appeal.  The issues explored by the Tribunal were relevant to its enquiry into the appellant’s claims.  The findings made by the Tribunal were open to it and I find no evidence of jurisdictional error.

24                  For the above reasons the appeal must be dismissed with costs.

Associate:

Dated:         2 May 2007