FEDERAL COURT OF AUSTRALIA

SZKEU v Minister for Immigration and Citizenship [2007]  FCA 1850

SZKEU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1719 of 2007

MADGWICK J

16 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is to pay the first respondent’s costs assessed in the sum of $3,500.

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

REASONS FOR JUDGMENT

1                    In this matter the appeal will be dismissed.  It seems to me that the learned Federal Magistrate was correct for the reasons he gave and I otherwise agree with the written submissions of counsel for the Minister which I will have appended to these reasons. The appellant is to pay the Minister’s costs, assessed in the sum of $3,500.

Associate:

Dated:         27 November 2007

ANNEXURE A

First Respondent’s outline of submissions

1.                  Appeal

This is an appeal from orders made by the Federal Magistrates Court of Australia on 16 August 2007. 

2.                  Background

2.1              The Appellant:

(a)                is a citizen of the People’s Republic of China;

(b)               arrived in Australia on 17 November 2004; and

(c)                lodged an application for a protection (class XA) visa on 31 December 2004.

2.2              The Appellant claimed that he had been involved in an underground Christian church in Shanli Village, Longtian Town, Fujian Province.  He claimed that since 1999 he had participated in various bible study groups and that in January 2003 he organised a bible study group that met every weekend.  The leader of the church, Mr Chen, instructed the Appellant to distribute “propaganda materials” for spreading the Gospel to the primary and middle schools in the local area.  The Appellant’s bible study group grew to 60 young persons.  In August 2004 the Public Security Bureau came to look for Mr Chen.  The Appellant’s father organised for Mr Chen and the Appellant to flee to Shenzhen City and stay with a friend of the Appellant’s father.  False passports were arranged.  The Appellant then fled to Hong Kong and Singapore in November 2004.  The Appellant claimed that subsequent to his departure, his father had been under investigation. 

2.3              On 13 May 2005 a delegate of the Minister refused to grant the Appellant a protection visa: AB 43-7.  The delegate found that she could not be satisfied that the Appellant did not have protection in a third country because the Appellant had not attended the departmental interview where these matters could be investigated.

2.4              On 20 June 2005 the Appellant filed an application for review with the Tribunal: AB 55-8.  Attached to that application was a statement that repeated his earlier claims: AB 59-62.  He attended a hearing before the Tribunal in respect to that application on 26 September 2005.  The Tribunal indicated that it required evidence from witnesses, including the Minister of his church in Sydney, to verify his claim that he attended a church in Sydney.  The Tribunal also indicated that it was obtaining material that indicated that a person with the same name and date of birth as the Appellant had illegally arrived in Australia and been deported in 2003.  The Tribunal asked the Appellant if he knew anything about this.  He responded that he knew nothing.

2.5              By letter dated 7 October 2005 the Tribunal invited the Appellant to comment on certain information particularised in that invitation that was relevant to the Appellant’s identity and the credibility of his claims to have been a member of an underground Christian church (the “First 424A Letter”): AB 75-6.  The relevant information related to the illegal entry of a person in April 2003 with a false Malaysian passport and the same name, date of birth and a Chinese identification card as the Appellant.  The Appellant responded on 31 October 2005: AB 78-81.

2.6              On 1 December 2005 the Tribunal handed down its decision affirming the decision under review: AB 85-96.  It found that the Appellant had lied about his circumstances in China and rejected all of his claims regarding his religious activities in China.  Accordingly, it found that he did not have a well-founded fear of persecution in China. 

2.7              That decision was set aside by consent orders of the Federal Magistrates Court of Australia made on 30 August 2006: AB 98.

2.8              On 6 November 2006 the Tribunal, as reconstituted, invited the Appellant to a second hearing on 12 December 2006: AB 104-5. 

2.9              On 4 December 2006 the Tribunal invited the Appellant to comment on certain information particularised in that invitation at an interview on 14 December 2006 (the “Second 424A Letter”): AB 107-8.  The relevant information related to inconsistencies in the Appellant’s claims and regarding his identity. 

2.10          The Appellant did not attend the hearing on 12 December 2006 as he had mistakenly assumed that the interview on 14 December 2006 replaced the hearing scheduled for 12 December 2006. 

2.11          The Appellant attended the interview scheduled for 14 December 2006.  The Tribunal put to the Appellant its concerns regarding his identity and its concerns regarding his claim to be a Christian. 

2.12          On 25 January 2007 the Tribunal handed down its decision to affirm the decision under review.  It found that the Appellant was not a credible witness and it rejected his claimed fears based on his religion.  The adverse credibility finding was based on two matters.  First, the Appellant’s level of involvement in religious activities in Australia was at odds with his claimed involvement in Christian activities in China.  Second, the Appellant was the person who illegally entered Australia in April 2003 and that was inconsistent with his claims to have been in China organising a bible study group at that time.      

3.                  Application for judicial review

3.1              The Appellant relied upon an amended application for judicial review filed on 6 June 2007.  That application recorded the following grounds:

(a)                The Tribunal ignored the fact that I am a Christian and the evidence from the local church. No evidence shows that I am the person who arrived at Australia in April 2003.

(b)               The RRT failed to carry on [sic] its statutory duty. I feel confusion about the hearing date on the letters from RRT on 6/11/2006 and 4/12/2006. It made me lost [sic] the first hearing chance on 12/12/2006.

(c)                The RRT had jurisdictional errors at the processing at my review.

(d)               The Tribunal did not try to believe me but set out to disbelieve what I said. It is not fair.

3.2              The Court below found that none of these grounds were made out.  His Honour found that the factual basis of the Appellant’s claims was considered by the Tribunal (reasons at [14]) and the issue as to the Appellant’s arrival in Australia in April 2003 was raised with the Appellant in the First 424A Letter and at the interview on 14 December 2006 (reasons at [15] and [16]).  On the basis of the material before the Tribunal, His Honour found that the Tribunal’s findings as to the Appellant’s identity were open to it.  His Honour found that the Tribunal’s discretion to allow the Appellant to give evidence on 14 December 2006 was open to it based on s 426A and no jurisdictional error resulted (reasons at [20]-[21]).  The remaining grounds 3 and 4 were dismissed as lacking particulars and lacking probative evidence respectively. 

4.                  Appeal

4.1              The Appellant relies upon a notice of appeal filed on 28 August 2007.  The First Respondent makes the following submissions in response to that notice of appeal.

4.2              In respect to ground 1, the Tribunal member was not so committed to a conclusion incapable of alteration: Minister for Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [35], [71] and [72].  Undoubtedly, the Tribunal had before it material that indicated that the Appellant had fabricated his claimed fears based on religion.  The Tribunal invited the Applicant’s comments on that material in the First 424A Letter, Second 424A Letter and at the interview on 14 December 2006.  Without evidence of partisanship or hostility, there is insufficient basis for inferring that the Tribunal was not open to persuasion.  Significantly, there is no evidence as to the conduct of the interview on 14 December 2006, other than that recorded in the reasons for decision: VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3].  That evidence does not show partisanship or hostility on the part of the Tribunal.  The approach taken by the Tribunal, in particular the opportunities to respond to the dispositive issues, does not demonstrate a departure from the Tribunal’s inquisitorial role of eliciting information from the Appellant and testing the reliability of the evidence presented by the Appellant: Yit v Minister for Immigration and Multicultural Affairs [2000] FCA 885 at [33]-[36]; see also Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 988 at [27]-[28].  The fact that the Tribunal had before it material that was damning of the Appellant’s claims does not indicate bias on the part of the Tribunal.  

4.3              The Appellant claims that the Tribunal’s decision was unfair.  The Court cannot entertain such a plea: Attorney-General (NSW) v Quin (1990) 170 CLR at 35-6.

4.4              In respect to ground 2, the Tribunal’s findings were open on the material before the Tribunal.  That material suggested that the Appellant was not organising bible studies in 2003 and was not the committed Christian that he claimed to be.  Based on that material it was open to the Tribunal to find that the Appellant was not a witness of credit and consequently reject his claims.  The Appellant cannot complain as to the sufficiency of the evidentiary basis for the findings made.  That is tantamount to a complaint as to the fairness of the findings and the weight attributed to the material before the Tribunal.  The Court should not entertain such challenges: Quin at 35-6; Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299 at 309; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-2 and 291-2; Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67].

5.                  Conclusion

5.1              Accordingly the First Respondent submits that the Appellant’s appeal should be dismissed with costs.

James Mitchell

Counsel for the First Respondent

Tel: 9235 1155

Fax: 9235 2342

9 November 2007