FEDERAL COURT OF AUSTRALIA

SZLBA v Minister for Immigration and Citizenship [2008] FCA 484

SZLBA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 236 OF 2008

COWDROY J

14 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  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.

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Cameron delivered on 1 February 2008 dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 19 June 2007. The Tribunal’s decision affirmed the decision of the delegate of the Minister for Immigration and Citizenship (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the visa’).

FACTS

2                     The appellant was born in the People’s Republic of China (‘the PRC’) on 28 October 1953. He arrived in Australia on 2 May 1998 holding a tourist visa. By application dated 2 July 2005, by which time the appellant was detained at Villawood Detention Centre, the appellant applied for the visa. Such application was refused by the delegate of the Minister on 21 July 2005.

3                     By letter addressed to the Minister on 3 November 2005 a submission was made on behalf of the appellant for intervention and a further letter dated 4 May 2006 was forwarded to the Minister in support of such submission. Further information was provided to the Minister by letter dated 20 July 2006. A letter written and signed by the appellant dated 28 August 2006 was also forwarded to the Minister. Representations were made again on 13 September 2006 by the appellant’s migration agent and again on 23 April 2007. There is no evidence of any response from the Minister.

4                     On 7 May 2007 an Application for Review was made to the Tribunal against the delegate’s refusal to grant the visa.

PROCEEDINGS BEFORE THE TRIBUNAL

5                     On 24 May 2007 the appellant was invited to attend a hearing on 14 June 2007. On 25 May 2007 the Tribunal supplied the appellant with information upon which it invited comment. By letter dated 28 May 2007 the appellant responded seeking further time in which to respond. By letter dated 30 May 2007 the appellant’s migration agent requested an extension of time until 4 June 2007 to provide the further information requested by the Tribunal. The Tribunal refused to grant such extension but indicated that it would consider material provided to before the handing down of its decision.

6                     The appellant attended the hearing of the Tribunal on 14 June 2007.

7                     Before the Tribunal the appellant claimed that he had been involved in the printing of anti-government brochures in the PRC. The Tribunal accepted that the appellant worked in a printing factory but rejected the allegation that he was involved in the printing of anti-government materials and that for that reason he was a person of interest to the authorities.

8                     The appellant also claimed to be involved in Christianity and claimed that he had become involved in the Christian Church in October 2006. He provided evidence of baptism and a statement from a Pastor of a church in support. The Tribunal accepted that on the basis of that evidence the appellant had been involved in Christian activities since about October 2006. However, the Tribunal found that the appellant had limited knowledge of the Christian faith and did not accept that the appellant had a genuine commitment to Christianity. The Tribunal concluded that there was no real risk that the appellant would suffer persecution if he returned to the PRC.

9                     On 18 June 2007 the Tribunal delivered its decision upholding the decision of the delegate that the appellant was not entitled to the visa.

APPLICATION FOR JUDICIAL REVIEW IN THE FEDERAL MAGISTRATES COURT

10                  The appellant sought judicial review of the Tribunal’s decision. The application was heard before Federal Magistrate Cameron on 29 November 2007 and dismissed by his Honour’s decision delivered on 1 February 2008.

APPEAL TO THE FEDERAL COURT

11                  By notice of appeal filed on 22 February 2008 the appellant appeals from the decision of Cameron FM. The notice of appeal raises two grounds, the second of which is not pursued. However the appellant has provided notice that it wishes to argue a second ground with leave of the Court. The grounds sought to be argued are as follows:

His Honour erred in holding that the Tribunal did not commit jurisdictional error in the manner in which it questioned the Appellant concerning his conversion to Christianity.

… the Tribunal committed jurisdictional error by failing to comply with the requirements of section 424A of the Migration Act 1958.

FIRST GROUND OF APPEAL

12                  The appellant submitted before this Court that the Tribunal committed a jurisdictional error by ‘implicitly limiting its reasoning to the view that a person can only have a genuine commitment to a particular religion if the person can correctly recite the teachings of that religion’. The appellant submits that the Tribunal asked the appellant whether he was ‘well-versed in Christian dogma’, not whether the appellant held religious beliefs which would result in persecution upon the return to his country of nationality. It submits that the Tribunal asked itself the wrong question and fell into jurisdictional error in accordance with the principles referred to in Craig v The State of South Australia (1995) 184 CLR 163.

13                   Similar submissions on this point had been made before Cameron FM. The Federal Magistrate rejected such argument on the basis that the issue was a factual one for the Tribunal’s decision.

14                  This Court finds that the issue raised by the first ground of appeal is a factual consideration only. This Court has no jurisdiction to reconsider the merits of the Tribunal’s findings and cannot review the factual findings of the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ; and Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42.

15                  The appellant’s reference to Craig v The State of South Australia is misconceived. Such authority did not hold that the asking of a question during a hearing which the appellant claims is wrong or inappropriate results in a jurisdictional error. Rather, such decision held that only jurisdictional error is reviewable by a court conducting a judicial review of an administrative decision maker. Such error may occur, for example, if the decision maker misconstrues the principles to be applied and in doing so addresses the wrong criteria. That, however, is a different circumstance to that of appellant’s challenge.

16                  In Cameron FM’s decision his Honour observed:

If the applicant believed that the Tribunal’s questions failed to elicit from him a proper articulation of his Christian faith then it was a matter for him to give more evidence and make further arguments at the Tribunal hearing, where it should be noted he was assisted by an adviser, which adequately demonstrated that faith.

There is no demonstrable error in the decision of Cameron FM as alleged.

17                  It follows that the first ground of appeal is rejected.

FURTHER GROUND OF APPEAL

18                  The appellant requires leave to raise a new ground of appeal which was not considered in the proceedings in the lower court. The ground claims that there has been a breach of s 424A of the Migration Act 1958 (Cth) (‘the Act’) in consequence of the conduct of the Tribunal. During the course of the hearing before the Tribunal the appellant stated that he had carried out ‘certain clandestine printing operations’ by himself. However the Tribunal then put to him a statement he had earlier made in a submission to the Minister in May 2006 to the effect that he had been assisted by fellow workers and others when printing the anti-government brochures in the PRC. The Tribunal found:

The applicant repeatedly stated in oral evidence that he carried out the entire printing process on his own and only after further questioning from the Tribunal the applicant referred to a co-worker who assisted him with the printing. The Tribunal is of the view that such change in evidence indicates that the applicant had not been truthful in his claims.

19                  The appellant submits that the Tribunal’s knowledge of the information concerning the involvement of other workers in the printing of the material constituted knowledge or information that was a reason, or part of the Tribunal’s reasons for upholding the delegate’s decision and as such the information contained in the submission to the Minister came within the ambit of s 424A(1) of the Act. If upheld it would follow that the Tribunal was required to provide to the appellant particulars of that information in writing and to state the reasons why it was relevant to the review and to ask him for his comments.

20                  The issue sought to be raised does not involve the provision of any additional evidence by the Minister and the Minister is not prejudiced if leave is granted. Accordingly the Court will grant leave to the appellant for such argument to be considered.

21                  The alleged impugned information was supplied by the appellant to the Minister by letter dated 4 May 2006. However, that information was not information which was ‘the reason, or a part of the reason’ referred to in s 424A(1)(a) of the Act. In SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 the appellant had provided a statutory declaration to the Minister in support of his visa application which contained information inconsistent with the oral evidence he provided in the hearing before the Tribunal. The Tribunal drew the appellant’s attention to the discrepancy. Such discrepancy led the Tribunal to conclude that the male appellant was not a reliable witness. The appellants claimed that there had been a breach of s 424A(1) of the Act because the Tribunal referred to the statutory declaration. The majority of the High Court held that the information in the statutory declaration need not have been provided under s 424A(1)(a) of the Act and said at [17]:

Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations.

22                  The facts in the present proceedings are substantially similar. The information which the appellant had provided to the Minister was not information which was used for the purpose of its reasons. Rather it was the answers which the appellant provided to the Tribunal which were used as the reasons for its decision. That is, the information contained in the appellant’s letter to the Minister was not, of itself, the reason for the Tribunal affirming the delegate’s decision. There is accordingly no error as alleged.

23                  Further, it should be observed that the information, even if it were properly classified as information which fell within s 424A(1)(a) of the Act, could not have been provided to the appellant in advance because the discrepancy which led the Tribunal to question the appellant only arose during the hearing when the appellant claimed he printed the alleged material by himself and not in the company of others.

24                  The Court refers to the observation of the High Court in SZBYR at [18]:

If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

25                  For the above reasons the Court finds that each of the grounds raised have no merit and orders that the appeal be dismissed.

Associate:

Dated:         14 April 2008