FEDERAL COURT OF AUSTRALIA

SZITN v Minister for Immigration and Citizenship [2007] FCA 1007

MIGRATION – Tribunal referred to information in visa application as part of its reasons – applicant delivered post–hearing statement which verified the statements in visa application – whether the information in visa application was information which the appellant gave for the purpose of the application

Migration Act 1958 (Cth) s 424A(3)(b)

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419

SZITN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

nsd 2270 OF 2006

SIOPIS J

5 juLY 2007

perth

THE COURT ORDERS THAT:

1.                  The name of the first respondent is varied to “Minister for Immigration and Citizenship”.

2.                  The appeal is dismissed.

3.                  The appellant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of the People’s Republic of China (China) who arrived in Australia on 19 July 2005.  He lodged an application for a protection visa under the Migration Act 1958 (Cth) (the Act) with the Department of Immigration and Multicultural Affairs on 1 August 2005.  The appellant claimed to have a well‑founded fear of persecution due to his membership of the Shouters or Hui Fu Hui, an underground Christian Church in China.

2                     In a written statement accompanying his visa application the appellant claimed that in 2003 nine policemen had broken up a meeting of his church group and had confiscated bibles, poetry and other publications.  The appellant said that two members of the church group were arrested and accused of disseminating “the religion”, and that the police threatened to arrest others if further meetings were held.  After that, meetings of the church group continued to be held in different secret locations.  The appellant said he became the “main deacon of ecclesiae” within the church group.  The appellant went on to say that, notwithstanding their efforts to keep their meetings secret, on 12 May 2005 police had arrived at a meeting of the church group and tried to arrest those present.  Further, the appellant said that five policemen broke into his home on 17 May 2005 intending to arrest him.  He was not there at the time.  The appellant said that he could not thereafter return to his house because he feared being arrested.  He subsequently left China for Australia.  The appellant stated that since his departure from China, his family has told him that he would be arrested and imprisoned should he return to China.

3                     On 17 October 2005 a delegate of the first respondent refused the application for a protection visa.  The delegate made adverse credibility findings in respect of the appellant.  On 23 November 2005 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.

The decision of the Tribunal

4                     The appellant and his migration agent attended the hearing of the Tribunal on 27 February 2006.  The appellant gave evidence at the hearing.  At the conclusion of the hearing, the appellant’s migration agent requested that she have an opportunity to provide the Tribunal with a post‑hearing submission.  It was agreed that any such submission be received by 6 March 2006, failing which the Tribunal would proceed to make its decision on the materials then before it.  Under cover of a letter from his migration agent dated 6 March 2006, the appellant provided the Tribunal with a further statement and a copy of part of the decision made by the delegate.  The covering letter stated “for your continue to process his case and make a decision, [the appellant] would like to proved another statement to you as requested” (sic).

5                     In the enclosed statement, the appellant, after having referred specifically to the proceeding before the delegate and the adverse credibility findings made by him, said:

I have to emphasize that all the information I provided in my previous statements is true and I told what I really experienced in my life.  I know that in China if I persist in my religious belief I could never have my peaceful life and I would be arrested, beaten, tortured, and jailed like other brothers and sisters.  There is evidence to prove what I said.

6                     The Tribunal rejected the appellant’s application for review and affirmed the delegate’s decision.  In the course of its reasons, the Tribunal referred on a number of occasions to the statements made in the written statement accompanying the appellant’s visa application, as well as to the evidence that the appellant gave before the Tribunal.

7                     The Tribunal found that the appellant had a sparse knowledge of Christianity and that this was at odds with his claim that he was a “main deacon of ecclesiae” within the church group.  The Tribunal could not, therefore, be satisfied that the appellant was a member of a Christian Church in China.  Further, the Tribunal stated that in his evidence at the hearing, the appellant had said that the police had broken up a church meeting at his home.  The Tribunal observed that he had failed to make such a claim in his original visa application.

8                     The Tribunal also referred to a discrepancy in the appellant’s visa application and his evidence as to the events of 17 May 2005.  In his visa application he said that on that day five policemen broke in to his home and tried to arrest him, but in evidence he said nine policemen had gone to another church person’s place to arrest people.

9                     The Tribunal was not satisfied that the appellant had been arrested, or threatened with arrest, or that he had ever come to the adverse attention of the police in China because of his religious beliefs or practices.

The Federal Magistrate

10                  In his amended application for judicial review in the Federal Magistrates Court, the appellant alleged that the Tribunal fell into jurisdictional error by relying in its reasons on inconsistent statements he made in his written statement which formed part of his visa application ‑ without providing the appellant with particulars in writing of that information.

11                  The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that the appellant “republished by reference and reliance, and otherwise adopted the statement given in support of the visa application in its entirety by the letter and statement of 6 March 2006; and, in the absence of any other statement, he ‘gave’ the information to the Tribunal during the hearing by relying upon it as ‘correct’ ”.

12                  The Federal Magistrate held that the inconsistent statement in the visa application, referred to by the Tribunal in its reasons, came within the exemption provided by s 424A(3)(b) of the Act.  Accordingly, there was no breach of s 424A of the Act.

The appeal

13                  The notice of appeal comprises the following grounds:

1.      DIMA made a wrong decision on my case of protection visa

2.      RRT did not give me a fair review

3.      RRT made jurisdictional errors.

14                  At the hearing of the appeal, the appellant advanced no submissions in support of any of the grounds set out in the notice of appeal – none of which identify an error by the Federal Magistrate in dealing with the only ground for review which was before the Federal Magistrate – namely, that there had been a failure to comply by the Tribunal with s 424A of the Act.  The appeal should, therefore, on the basis of the grounds referred to in the notice of appeal, be dismissed.  However, counsel for the first respondent treated the appellant’s notice of appeal as contending that the Federal Magistrate erred in determining that the Tribunal had not contravened s 424A of the Act and I am content to deal with the appeal on this basis.

15                  Since the hearing of this appeal, the High Court has handed down the decision of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.  That decision is fatal to the case advanced by the appellant.  However, in my view, for the following reasons, the appeal also fails on another ground.

16                  In my view, the Federal Magistrate did not err in deciding that by submitting his post‑hearing statement under cover of the letter of 6 March 2006, the appellant adopted and verified the information contained in the statement accompanying his visa application and that, accordingly, s 424A(3)(b) applied to the information in the first statement.

17                  Before the Federal Magistrate it was contended that the appellant’s reference to “my previous statements” in his post‑hearing statement (see [5] above), did not refer to the written statement which accompanied the visa application and referred only to his evidence given before the Tribunal.  In my view, the appellant did by his 6 March 2006 statement adopt and verify the information in the statement accompanying the visa application.  I draw this inference by reason of the juxtaposition of the paragraph in the post‑hearing statement which verifies the “previous statements” and the immediately preceding paragraphs which refer to the adverse findings of the delegate.  I note also that the document which accompanied the visa application was headed “statement” and that there was no other written document signed by the appellant before the Tribunal.

18                  In my view, in his post‑hearing statement, the appellant referred to, and verified, his statement accompanying the visa application for the purpose of rebutting the adverse credibility findings made by the delegate and, also, to assuage the doubts expressed by the Tribunal as to the appellants credibility during the hearing.  The submission was directed to excusing the appellant’s poor performance whilst giving oral evidence at the Tribunal and resurrecting the veracity of the information contained in the statement accompanying the visa application.  In my view, the following observations of Young J (with whom Gyles and Stone JJ agreed) in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 435‑436, at [63] (NBKT) are applicable:

Furthermore, by filing written submissions with the Tribunal that expressly referred to and incorporated the statement of grounds which was attached to her visa application, the appellant invited the Tribunal to refer to her protection visa application.  As in M55 [2005] FCA 131, there can be little doubt that the appellant intended that the Tribunal should look at her protection visa application and its attachments.  This is a sufficient basis to find that the appellant gave the date of her protection visa application to the Tribunal for the purposes of the review application.

19                  In NBKT the written submissions were delivered before the commencement of the hearing, whereas in this case they were delivered after the conclusion of the hearing.  However, in my view, this is not a material difference because in both cases the information was given “for the purpose of the application” and so the requirements of s 424A(3)(b) of the Act were satisfied.

20                  The appeal is dismissed with costs.

Associate:

Dated:         5 July 2007