FEDERAL COURT OF AUSTRALIA

SZCVF v Minister for Immigration and Citizenship [2008] FCA 677

Migration Act 1958 (Cth) ss 424A, 424A(1), 425

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241

QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 201 ALR 437

SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62

SZCVF v Minister for Immigration & Citizenship & Anor [2007] FMCA 2131

VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104

SZCVF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1 of 2008

MCKERRACHER J

16 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal will be dismissed.

2.         The appellant is to pay the costs of the first respondent to be taxed if not agreed.

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 a judgment of a Federal Magistrate (Raphael FM) delivered on 17 December 2007 (SZCVF v Minister for Immigration & Citizenship & Anor [2007] FMCA 2131) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 19 September 2006.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as it was then known) to refuse to grant a protection (class XA) visa to the appellant.

Background

2                     The appellant is a citizen of China.  She arrived in Australia on 23 April 2002 and on 23 August 2002 applied for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known) (the Department).  On 19 July 2002 a delegate of the first respondent refused her application for a protection visa.  The appellant sought review of that decision from the Refugee Review Tribunal which affirmed the decision on 3 February 2004.  The appellant sought review of that Tribunal’s decision in the Federal Magistrates Court on 18 May 2006 and that court set aside the decision and remitted the matter to the Tribunal differently constituted to be determined according to law. 

The Appellant’s Contentions

3                     The second Tribunal affirmed the decision under review.  Before the Tribunal, the appellant claimed to have a well-founded fear of persecution on the basis of being a pious Christian and key member of an underground church.  The appellant claimed that in 1995, while she was at a church gathering at her uncle’s place, keeping watch for ‘dangerous people who might be from local government or police station’, four strangers arrived and identified themselves as ‘plain policemen’.  The police arrested her father and uncle and she was subjected to interrogation three times and forced to confess her father and uncle’s anti-government religious activities.  Her father was subsequently detained for half a year and her uncle sent to a labour farm.

4                     In July 1996 she began working for the owner of a textile factory, who was a pious Christian and arranged for her to distribute religious materials and recruit members for his church.  This church was discovered by the Public Security Bureau (PSB) in October 1999 and his factory was ‘sealed’ by the local government.  The appellant was detained by the PSB from October 1999 to January 2000 where she was physically and mentally persecuted by the police.  She was forced to give up her religious activities.  She was put under surveillance by the PSB and prevented from practising her religion.  The local authorities refused to allow her to marry her boyfriend and did not accept their de facto relationship.  A son was born in 2001 but was not given normal rights.  In early 2001, the appellant re-organised the underground church and obtained materials through friends of her father in Hong Kong.  After February 2002, members were interrogated and arrested by the PSB.  They did not discover that the appellant was the leader but she decided to leave the country because of the danger. 

The Tribunal’s Conclusion

5                     When the appellant attended the first hearing before the Tribunal on 28 June 2003, she stated that she was born in 1970 and not 1978 as was indicated in her application for a protection visa and in her passport.  The Tribunal raised a number of questions about her date of birth. 

6                     On 3 February 2004 when the first Tribunal handed down its decision to affirm the delegate’s decision it rejected the appellant’s claims on the basis that her testimony at the hearing was evasive, unconvincing and misleading.  That decision was subsequently quashed by consent orders of the Federal Magistrates Court made on 18 May 2006.  The matter was remitted to the Tribunal.

7                     On 12 July 2006 the appellant’s migration agent submitted a statutory declaration given by the appellant explaining that her real name was [the appellant] and that she changed her name and date of birth in China so as to obtain a Chinese passport. 

8                     On 18 July 2006 the appellant appeared before the reconstituted Tribunal.  She elaborated on her earlier claims and asserted that the religion of her church was ‘little gatherings’ called ‘Shout or HuHan’.  She stated that the name in her passport, application for protection visa and application for review was fraudulent. 

9                     By letter dated 26 July 2006 the Tribunal pursuant to s 424A of Migration Act 1958 (Cth)(the Act) invited the appellant to comment on certain information regarding inconsistencies in her evidence that was relevant to her identity and her credibility.

10                  By letter dated 9 August 2006 the appellant responded to that invitation.

11                  The Tribunal handed down its decision on 19 September 2006.  It was not satisfied of the appellant’s true identity.  More importantly, it did not accept the appellant’s claims and found that they were created in order to obtain a protection visa.  She claimed at the second Tribunal hearing that she was a Shouter but had not previously made this claim.  She claimed at the second Tribunal hearing that she started a secret recruitment network via the internet but had not previously made this claim. 

12                  The Tribunal accepted that members of the ‘Shouters’ in China can and do suffer harm because of their religion but found that the appellant was not a witness of truth and had fabricated her claims in order to obtain the visa sought.  The appellant’s explanation for inconsistencies in her evidence was not accepted and the independent country information did not support her claims either.  The Tribunal was not satisfied that the Chinese authorities prevented her registering her marriage because of her religion nor that she ‘fled China’ fearing Convention related harm (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).

The Federal Magistrate’s Decision

13                  Before the Federal Magistrate, the appellant claimed that the Tribunal committed jurisdictional error by failing to comply with the obligations under s 424A(1) of the Act, on the basis that the s 424A letter sent to the appellant did not include reference to the ‘Shouters Church’ and the ‘Local Church’.  The appellant further claimed that the Tribunal failed to consider her claims ‘properly and fairly’ and did not have a ‘basic knowledge’ concerning ‘Shouters’.  Thirdly, the appellant claimed that the Tribunal failed to comply with s 425 of the Act, as the Presiding Member ‘actually never intended’ to make clear to her what the issues were in relation to the application for review.

14                  The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, dismissed the application.  His Honour also declined to grant an adjournment sought by the appellant because she had not received legal advice, given the very lengthy delay in making the claim.  That ruling is not the subject of complaint.  His Honour proceeded to find, in relation to the first ground of appeal, that there was no failure by the Tribunal to comply with s 424A, as the independent country information did not have to be referred to the appellant.  

15                  Importantly his Honour also found that whatever the Tribunal’s understanding of the Shouters may have been, such an understanding became irrelevant when it refused to accept that the appellant was a member of the church.  She had not told either the Department or the Tribunal of her membership.

16                  In relation to the second ground of review, his Honour found that it was ‘too late at this stage to argue with the Tribunal about its interpretation of the independent country information’.  Finally, his Honour held that the Tribunal ‘took up with the [appellant] those matters upon which it had most serious concern’ and provided every chance for the appellant to comment on the negative issues.  There was consequently no breach of s 425 of the Act, or any other conduct which amounted to a jurisdictional error. 

Grounds of Appeal

17                  Giving them the clearest meaning possible, the notice of appeal filed in this Court appears to raise the following grounds:

1.                  A failure by the Federal Magistrate to identify that the Tribunal failed to inform the appellant that it would rely on country information.

2.                  A failure by the Federal Magistrate to identify that the Tribunal failed its procedural fairness obligation under s 424A of the Act in relation to ‘glaring inconsistencies’ – namely, a failure to raise, prior to the second Tribunal hearing, that she was a ‘Shouter’.

3.                  A failure by the Federal Magistrate to identify that the appellant was not informed that the Tribunal did not believe that she would not practise religion in China.

4.                  A failure by the Federal Magistrate to identify that the Tribunal did not ask the correct questions. 

5.                  A failure by the Federal Magistrate to identify that the Tribunal did not act judicially in accordance with the requirements of the Act.  

18                  Appearing before me, the appellant stressed once again the fact that she had difficulty in understanding questions which were put to her by the Tribunal and that she was unaware that she could offer further information beyond simply answering questions put to her by the Tribunal.  She said that she was confused because she did not have an interpreter who spoke the most appropriate dialect for her purposes. 

19                  Mr Mitchell appearing for the first respondent submitted, correctly in my view, that insofar as the Tribunal and in turn the Federal Magistrate was concerned, the name issue was relatively incidental.  Her evidence as to her membership of and activity with the particular denomination ‘Shouters’ was rejected on grounds which stood independently of the issue concerning her correct name and date of birth.

20                  The appellant also complained that she did not understand the s 424A letter sent by the Tribunal and the process that it entailed.  However there was a response to the letter.  There is no indication in that response of a lack of understanding of the process.  As to the difficulty with understanding and the alleged shortcomings of the interpreter, in the absence of a transcript, let alone a ground of appeal, no weight could be given to this complaint.  There is no evidential basis for a claim that the determinative issues were not discussed with the appellant during the course of the Tribunal hearing as well as there is no transcript in evidence:  NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21].  The reasons themselves suggest to the contrary. 

21                  Finally and in relation to the appellant’s complaint about the nature of questioning from the Tribunal, Mr Mitchell referred to the decision of Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 201 ALR 437 for the proposition that it was not for the Tribunal to make the case for the applicant before it.  I agree with the applicability of that High Court authority to this submission. 

Consideration

22                  Turning then to the original grounds of appeal in sequence:

Ground 1

23                  The Federal Magistrates Court considered the Tribunal’s use of country information.  It observed, correctly, that country information is not subject to s 424A by reason of s 424A(3)(a):  Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and MCKERRACHER J

16 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal will be dismissed.

2.         The appellant is to pay the costs of the first respondent to be taxed if not agreed.

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 a judgment of a Federal Magistrate (Raphael FM) delivered on 17 December 2007 (SZCVF v Minister for Immigration & Citizenship & Anor [2007] FMCA 2131) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 19 September 2006.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as it was then known) to refuse to grant a protection (class XA) visa to the appellant.

Background

2                     The appellant is a citizen of China.  She arrived in Australia on 23 April 2002 and on 23 August 2002 applied for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known) (the Department).  On 19 July 2002 a delegate of the first respondent refused her application for a protection visa.  The appellant sought review of that decision from the Refugee Review Tribunal which affirmed the decision on 3 February 2004.  The appellant sought review of that Tribunal’s decision in the Federal Magistrates Court on 18 May 2006 and that court set aside the decision and remitted the matter to the Tribunal differently constituted to be determined according to law. 

The Appellant’s Contentions

3                     The second Tribunal affirmed the decision under review.  Before the Tribunal, the appellant claimed to have a well-founded fear of persecution on the basis of being a pious Christian and key member of an underground church.  The appellant claimed that in 1995, while she was at a church gathering at her uncle’s place, keeping watch for ‘dangerous people who might be from local government or police station’, four strangers arrived and identified themselves as ‘plain policemen’.  The police arrested her father and uncle and she was subjected to interrogation three times and forced to confess her father and uncle’s anti-government religious activities.  Her father was subsequently detained for half a year and her uncle sent to a labour farm.

4                     In July 1996 she began working for the owner of a textile factory, who was a pious Christian and arranged for her to distribute religious materials and recruit members for his church.  This church was discovered by the Public Security Bureau (PSB) in October 1999 and his factory was ‘sealed’ by the local government.  The appellant was detained by the PSB from October 1999 to January 2000 where she was physically and mentally persecuted by the police.  She was forced to give up her religious activities.  She was put under surveillance by the PSB and prevented from practising her religion.  The local authorities refused to allow her to marry her boyfriend and did not accept their de facto relationship.  A son was born in 2001 but was not given normal rights.  In early 2001, the appellant re-organised the underground church and obtained materials through friends of her father in Hong Kong.  After February 2002, members were interrogated and arrested by the PSB.  They did not discover that the appellant was the leader but she decided to leave the country because of the danger. 

The Tribunal’s Conclusion

5                     When the appellant attended the first hearing before the Tribunal on 28 June 2003, she stated that she was born in 1970 and not 1978 as was indicated in her application for a protection visa and in her passport.  The Tribunal raised a number of questions about her date of birth. 

6                     On 3 February 2004 when the first Tribunal handed down its decision to affirm the delegate’s decision it rejected the appellant’s claims on the basis that her testimony at the hearing was evasive, unconvincing and misleading.  That decision was subsequently quashed by consent orders of the Federal Magistrates Court made on 18 May 2006.  The matter was remitted to the Tribunal.

7                     On 12 July 2006 the appellant’s migration agent submitted a statutory declaration given by the appellant explaining that her real name was [the appellant] and that she changed her name and date of birth in China so as to obtain a Chinese passport. 

8                     On 18 July 2006 the appellant appeared before the reconstituted Tribunal.  She elaborated on her earlier claims and asserted that the religion of her church was ‘little gatherings’ called ‘Shout or HuHan’.  She stated that the name in her passport, application for protection visa and application for review was fraudulent. 

9                     By letter dated 26 July 2006 the Tribunal pursuant to s 424A of Migration Act 1958 (Cth)(the Act) invited the appellant to comment on certain information regarding inconsistencies in her evidence that was relevant to her identity and her credibility.

10                  By letter dated 9 August 2006 the appellant responded to that invitation.

11                  The Tribunal handed down its decision on 19 September 2006.  It was not satisfied of the appellant’s true identity.  More importantly, it did not accept the appellant’s claims and found that they were created in order to obtain a protection visa.  She claimed at the second Tribunal hearing that she was a Shouter but had not previously made this claim.  She claimed at the second Tribunal hearing that she started a secret recruitment network via the internet but had not previously made this claim. 

12                  The Tribunal accepted that members of the ‘Shouters’ in China can and do suffer harm because of their religion but found that the appellant was not a witness of truth and had fabricated her claims in order to obtain the visa sought.  The appellant’s explanation for inconsistencies in her evidence was not accepted and the independent country information did not support her claims either.  The Tribunal was not satisfied that the Chinese authorities prevented her registering her marriage because of her religion nor that she ‘fled China’ fearing Convention related harm (Convention Relating to the Status of Refugees 1951 as amended under the Protocol Relating to the Status of Refugees 1967).

The Federal Magistrate’s Decision

13                  Before the Federal Magistrate, the appellant claimed that the Tribunal committed jurisdictional error by failing to comply with the obligations under s 424A(1) of the Act, on the basis that the s 424A letter sent to the appellant did not include reference to the ‘Shouters Church’ and the ‘Local Church’.  The appellant further claimed that the Tribunal failed to consider her claims ‘properly and fairly’ and did not have a ‘basic knowledge’ concerning ‘Shouters’.  Thirdly, the appellant claimed that the Tribunal failed to comply with s 425 of the Act, as the Presiding Member ‘actually never intended’ to make clear to her what the issues were in relation to the application for review.

14                  The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, dismissed the application.  His Honour also declined to grant an adjournment sought by the appellant because she had not received legal advice, given the very lengthy delay in making the claim.  That ruling is not the subject of complaint.  His Honour proceeded to find, in relation to the first ground of appeal, that there was no failure by the Tribunal to comply with s 424A, as the independent country information did not have to be referred to the appellant.  

15                  Importantly his Honour also found that whatever the Tribunal’s understanding of the Shouters may have been, such an understanding became irrelevant when it refused to accept that the appellant was a member of the church.  She had not told either the Department or the Tribunal of her membership.

16                  In relation to the second ground of review, his Honour found that it was ‘too late at this stage to argue with the Tribunal about its interpretation of the independent country information’.  Finally, his Honour held that the Tribunal ‘took up with the [appellant] those matters upon which it had most serious concern’ and provided every chance for the appellant to comment on the negative issues.  There was consequently no breach of s 425 of the Act, or any other conduct which amounted to a jurisdictional error. 

Grounds of Appeal

17                  Giving them the clearest meaning possible, the notice of appeal filed in this Court appears to raise the following grounds:

1.                  A failure by the Federal Magistrate to identify that the Tribunal failed to inform the appellant that it would rely on country information.

2.                  A failure by the Federal Magistrate to identify that the Tribunal failed its procedural fairness obligation under s 424A of the Act in relation to ‘glaring inconsistencies’ – namely, a failure to raise, prior to the second Tribunal hearing, that she was a ‘Shouter’.

3.                  A failure by the Federal Magistrate to identify that the appellant was not informed that the Tribunal did not believe that she would not practise religion in China.

4.                  A failure by the Federal Magistrate to identify that the Tribunal did not ask the correct questions. 

5.                  A failure by the Federal Magistrate to identify that the Tribunal did not act judicially in accordance with the requirements of the Act.  

18                  Appearing before me, the appellant stressed once again the fact that she had difficulty in understanding questions which were put to her by the Tribunal and that she was unaware that she could offer further information beyond simply answering questions put to her by the Tribunal.  She said that she was confused because she did not have an interpreter who spoke the most appropriate dialect for her purposes. 

19                  Mr Mitchell appearing for the first respondent submitted, correctly in my view, that insofar as the Tribunal and in turn the Federal Magistrate was concerned, the name issue was relatively incidental.  Her evidence as to her membership of and activity with the particular denomination ‘Shouters’ was rejected on grounds which stood independently of the issue concerning her correct name and date of birth.

20                  The appellant also complained that she did not understand the s 424A letter sent by the Tribunal and the process that it entailed.  However there was a response to the letter.  There is no indication in that response of a lack of understanding of the process.  As to the difficulty with understanding and the alleged shortcomings of the interpreter, in the absence of a transcript, let alone a ground of appeal, no weight could be given to this complaint.  There is no evidential basis for a claim that the determinative issues were not discussed with the appellant during the course of the Tribunal hearing as well as there is no transcript in evidence:  NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21].  The reasons themselves suggest to the contrary. 

21                  Finally and in relation to the appellant’s complaint about the nature of questioning from the Tribunal, Mr Mitchell referred to the decision of Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 201 ALR 437 for the proposition that it was not for the Tribunal to make the case for the applicant before it.  I agree with the applicability of that High Court authority to this submission. 

Consideration

22                  Turning then to the original grounds of appeal in sequence:

Ground 1

23                  The Federal Magistrates Court considered the Tribunal’s use of country information.  It observed, correctly, that country information is not subject to s 424A by reason of s 424A(3)(a):  Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 and further that the Tribunal’s interpretation of the country information was a factual matter for the Tribunal:  NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [32].

24                  The Tribunal recorded that it put to the appellant the key aspects of the country information that were determinative of her application, namely, that Christians could freely practise their faith in the Fujian Province.  The Tribunal did not believe the appellant was a Shouter.  Its concerns in that respect were legitimate and were clearly raised in the s 424A letter. 

Ground 2

25                  This ground, at least in these terms, was not raised in the Federal Magistrates Court.  The Federal Magistrates Court (at [12]) considered that the Tribunal was not obliged to put country information to the appellant pursuant to s 424A(1).  The appellant asserts a different breach of s 424A(1) to that asserted in her application filed in the Federal Magistrates Court.  In relation to the new ground, the s 424A letter clearly outlined to the appellant the relevance of the appellant’s failure to claim prior to the second Tribunal hearing that she was a ‘Shouter’. 

Ground 3

26                  The Tribunal found that the appellant was not a ‘Shouter’ or a member of an underground church because she was not a witness of credit.  That finding was based on the same appraisal that was put to her in the s 424A letter.  It was based on a rational assessment of her claims and is not open to review by this Court:  Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65]-[67]. 

27                  As submitted by Mr Mitchell, the Tribunal subsequently considered whether the appellant could practise Christianity in the Fujian Province should she return.  It found that, based on the country information that it put to her during the course of the hearing, she would not be prevented from practising Christianity on her return to the Fujian Province, China.  Again that finding was open on the material before the Tribunal and is not vitiated by error. 

Ground 4

28                  This ground fails with Ground 3 but, in any event, provided it complies with the procedural code constituted by Div 4 of Pt 7 of the Act, the Tribunal is not bound to ask the appellant particular questions:  SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8].

29                  The Tribunal plainly did consider the chance of the appellant’s persecution on return to China.  The Tribunal’s credibility findings subsumed the entirety of her claims to have suffered Convention related harm in the past and it was open, on that basis, for the Tribunal to find that her persecution fears were not well-founded:  Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 557-577. 

Ground 5

30                  There is no evidence that the Tribunal failed to act judicially in the sense understood in the authorities.  The Tribunal’s findings constituted a rational appraisal of the material before it. 

Conclusion

1.                  The appeal will be dismissed.

2.                  The appellant is to pay the costs of the first respondent to be taxed if not agreed.

Associate:

Dated:         16 May 2008