FEDERAL COURT OF AUSTRALIA

SZJNV v Minister for Immigration and Citizenship [2007] FCA 702

MIGRATION – review of a decision of the Refugee Review Tribunal (‘the Tribunal’) – whether Tribunal committed an error of law – whether any evidence of bias – whether comments of Tribunal amounted to a requirement that the appellant change her behaviour to avoid persecution – no error disclosed

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 distinguished

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 cited

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited

NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 cited

SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 cited

SZJNV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 341 OF 2007

MIDDLETON J

9 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a federal magistrate of 21 February 2007dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 14 September 2006.

PROCEDURAL BACKGROUND AND THE APPELLANT’S CLAIMS

2                     The appellant is a citizen of the People’s Republic of China who arrived in Australia and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  A delegate of the first respondent refused the application for a protection visa on 21 April 2006.  On 23 May 2006 the appellant applied to the Tribunal for a review of that decision. 

3                     Before the Tribunal the appellant claimed to have well-founded fear of persecution based on her religious beliefs as a member of an underground Christian church in China.  The appellant claimed to have started to attend a bible study group in April 2004 and in August 2004 the appellant was baptised.  In June 2005 after attending a religious gathering, the appellant claimed to have been accosted by a group of ruffians.  When the police came to assist the appellant they found her bible in her handbag and she was taken to the police station and questioned.  She claimed she was detained for one week and then released.  In September 2005, police broke up a gathering the appellant had attended and the appellant was detained for one month.  The appellant gave evidence that there were ten people at the gathering but only the appellant and another were detained.  The appellant claimed that afterwards, the police continually watched her.

THE DECISION OF THE TRIBUNAL

4                     The Tribunal found the appellant was not a credible witness at the hearing.  It found difficulty in getting “any sort of clear idea” about the religious activities in which the appellant had engaged.  The Tribunal was prepared to accept the appellant had attended some bible study groups at the invitation of a person whom the appellant met through business.  The Tribunal noted from independent country information that these groups were not in themselves illegal.  The Tribunal also accepted that the appellant was rescued by police from an attempted assault in June 2005 and that the appellant may have been questioned in passingby the police regarding the bible but nothing came of it as the appellant was released conditionally.  The Tribunal was not satisfied the appellant was detained for a week, as it found it implausible in the confines of a small village police station.  The Tribunal did not accept the appellant’s account of events after June 2005, finding the appellant had changed and exaggerated her answers, or failed to answer questions.  The Tribunal found the raid on the study group in September 2005 to be implausible as the police would not have allowed 80% of the attendees to avoid arrest, given they considered it to be an illegal gathering.  Further, the Tribunal found implausible the claim that the leader of the group the appellant had attended, who was also the leader of five other groups, was able to arrange for the appellant’s release, but she had never been arrested or detained herself.  The Tribunal noted the appellant did not give a consistent story regarding her actions after leaving detention.  The Tribunal was of the view that the appellant left China voluntarily, noting that the appellant’s family were keen for her to undertake employment overseas. 

5                     The Tribunal found the appellant’s account of her religious observance in Australia deeply confused.  The Tribunal was not satisfied the appellant had sought religion in Australia “in the way that would be appropriate to someone who is afraid to worship in her country and who fled that country in order to find religious freedom”.  The Tribunal noted independent evidence which indicated that the local authorities in the appellant’s area were not repressive to house churches or bible study groups not associated with overseas churches or not part of a well-organised network.

6                     The Tribunal also noted the appellant had the option of attending a state-sanctioned church in her district without any adverse consequences.  On the basis of the Tribunal finding that the appellant did not have “any deep theological convictions that would impel her to reject the state-sanctioned church”, this seemed “a reasonable solution”.  The Tribunal noted that the appellant had never attended a state-sanctioned church and therefore had no basis upon which to say that it would not meet her spiritual needs.  On the evidence, the Tribunal was not satisfied the appellant had ever suffered harm amounting to persecution for her religion.

THE FEDERAL MAGISTRATE’S DECISION

7                     Before the federal magistrate, the appellant raised grounds that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’), failed to comply with s 425 of the Act and failed to consider the claims properly and fairly.  Submissions filed on 6 December 2006 also raised grounds of bias.  In oral submissions the appellant claimed that the Tribunal had been selective with the country information relied upon and that the Tribunal had not provided such information to the appellant for comment.

8                     The federal magistrate found no evidence of bias and no evidence of selective use of the country information.  In relation to the s 424A(1) ground, the Tribunal’s decision was largely based on the appellant’s own evidence at the hearing and country information and thus fell within the exceptions provided in s 424A(3)(a) and (b).  Further, there was no breach of s 425 as the Tribunal considered the appellant’s claims in detail and that appellant was invited and did attend the hearing.

9                     Counsel for the first respondent raised the fact that the Tribunal’s reference to the appellant attending a state-sanctioned church may raise similar issues to those which arose in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.  However, the federal magistrate distinguished this case on two bases.  Firstly, here the Tribunal made a factual finding that the appellant had no deep theological convictions and this finding had no discernable error.  There was no equivalent finding in Appellant S395/2002 216 CLR 473.  Consequently, the finding based on country information that a person without a deep faith can worship at a state-sanctioned church was open to the Tribunal.  Secondly, the Tribunal did not express as a requirement that the appellant had to modify her behaviour but rather was observing it was an option for the appellant.

10                  His Honour also considered the decision of SBVC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 76, where Finn J upheld the Tribunal’s conclusion that the manner in which an appellant practised her religion did not put her at risk of persecution from the Chinese authorities, and was satisfied that decision was applicable to the matter at hand and followed that decision. 

11                  The federal magistrate also had regard to Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1 at [8] and [158] where the High Court confirmed the necessity to focus on the individual claims rather than the class of persons being considered.  His Honour found the Tribunal did focus on the specifics of the appellant’s claims.  As there was no jurisdictional error, his Honour dismissed the application.

GROUNDS OF APPEAL

12                  In her notice of appeal the appellant raised two grounds, namely that the federal magistrate erred in law and that the federal magistrate was wrong in finding the Tribunal acted properly in its findings.  Particulars in support of these grounds indicated the appellant was asserting bias and breach of s 424A of the Act.

CONSIDERATION

13                  With respect to the claim of actual bias, I can find no evidence to support such a claim.  Nothing before me demonstrates a “closed mind” on the part of the Tribunal: see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15], referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530 per Gleeson CJ and Gummow J.  The appellant has not identified any particular material or findings in support of any claim of bias, actual or apprehended, and I cannot be satisfied that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344; and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 214 ALR 264 at [14].

14                  In relation to the reliance upon s 424A of the Act, the appellant has not been able to identify any “information” other than the independent country information.  The federal magistrate, correctly in my view, held that the reasons for the Tribunal affirming the decision of the delegate were founded upon information either given by the appellant to the Tribunal at the hearing (thereby falling within s 424A(3)(b)), or upon independent country information (thereby falling within s 424A(3)(a)).  Accordingly there is no basis for this ground of appeal being successful.

15                  The question then arises as to whether or not the Tribunal committed an error in respect of the Appellant S395/2002 216 CLR 473 issue.  In the present case the Tribunal’s observations were premised on its findings of fact concerning the scope and depth of the appellant’s religious commitment and activities in China and Australia.  The Tribunal, after finding that the claims of the appellant were not to be believed, stated:

The Tribunal notes that the applicant has the option of attending a state-sanctioned church in Fujian without any adverse consequences.  As the Tribunal has not formed the view that the applicant has any deep theological convictions that would impel her to reject the state-sanctioned church, this seems a reasonable solution.  The applicant herself has never attended a state-sanctioned church and has no basis on which to say that it would not meet her spiritual needs (not that she claimed this), other than having been told by Mrs Wei that such churches are “very bad”.  The Tribunal notes that the bibles in use by the state-sanctioned churches “differ very little from other versions available outside China and the Bible text remains sound and intact.  It is normal for Patriotic churches to display crosses, crucifixes and portraits of Jesus” (UK Home Office, Country Assessment: China, April 2006 para 6.74).

16                  In my view this seems to be a mere observation or note after dealing with the essential elements of the application. 

17                  The Tribunal asked itself the correct question – did the appellant have a well founded fear of persecution on the grounds contended by her?  The Tribunal clearly made an inquiry which was directed to the individual appellant and was fact-specific.  The Tribunal did not ask (as in Appellant S395/2002 216 CLR 473) whether it was possible for the appellant to live in China in such a way as to avoid adverse consequences.  The Tribunal did not ask whether the appellant could avoid persecution.  It did not set out any requirement that the appellant modify her behaviour in order to practice her Christianity in China.  In my view, an accurate assessment of the factual findings made and reasoning recorded in the Tribunal’s reasons for decision discloses no error in this regard. 

18                  Finally, in submissions before me today reliance was placed upon s 425 of the Act.  It seems to me in the circumstances and on the material before the Tribunal and the Federal Magistrates Court that the appellant had ample opportunity to give evidence and present arguments relating to the issues that were before the Tribunal. 

19                  Another issue was raised today of there being difficulties with the interpreter before the Tribunal.  This matter has not been raised before.  No specific instances were provided to demonstrate the difficulties.  No evidence or material is before me which would enable me to conclude that the appellant was not given a fair hearing or was not able to put her submissions to the Tribunal or be given the opportunity to be heard on the basis of difficulties with the interpreter.  I find no basis upon which this Court could intervene upholding this new ground raised today, there being no factual foundation for it. 

20                  Accordingly, in my view the appeal should be dismissed.

Associate:

Dated:         17 May 2007