FEDERAL COURT OF AUSTRALIA

SZLIJ v Minister for Immigration & Citizenship [2008] FCA 1688

SZLIJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1206 of 2008

EDMONDS J

13 NOVEMBER 2008

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1                     The appellant appealsfrom a decision of the Federal Magistrates Court delivered on 17 March 2008: SZLIJ v Minister for Immigration & Anor [2008] FMCA 923.  The Federal Magistrate had dismissed an application for judicial review of a decision of the second respondent (‘theTribunal’)dated 7 August 2007 and handed down on 21 August 2007, which affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection (Class XA) visa.

Grounds

2                     The appellant asserts that the Federal Magistrate failed to find that:

(a)                The Tribunal made its decision based on unwarranted assumptions, and failed to look at the evidence submitted fairly and properly (Ground 1);

(b)               the Tribunal’s decision was affected by apprehended bias (Ground 2);

(c)                the Tribunal failed to provide the appellant with a fair chance to present her arguments (Ground 3);

(d)               the Tribunal failed to consider the appellant’s further evidence or claims in response to a letter sent by the Tribunal after the hearing.

3                     The above grounds are in similar terms to the grounds raised in the appellant’s amended application before the Federal Magistrates Court.

Background

4                     The appellant is a national of the People’s Republic of China (‘China’)who arrived in Australia on 13 February 2007 and lodged an application for a protection visa on 13 March 2007, claiming to fear persecution from the Public Security Bureau (‘the PSB’)by reason of her Christian beliefs and her participation in what she described as an underground Christian church.  She claimed that she had been arrested by the PSB on 24 December 2006 and detained for ten days.  Following that time, the appellant claimed to have been watched by police, and that she was questioned by the PSB about three times.

Tribunal’s Decision

5                     The Tribunal found, that the appellant was ‘a low profile, recent Christian convert who has participatedin modest church activities in her locality in Fujian in the past, without anyobstacles’.  The Tribunal further found that, if returned to China, the appellant could resume this religious practice or develop her involvement in musical or social activities if she so chooses, without a real chance of persecution.

6                     There were a number of factors leading to the Tribunal’s conclusion.  They included:

(a)                The Tribunal’s view that the appellant’s evidence was exaggerated, evasive and confused, sometimes trying to correct and embellish her responses during the course of the discussion and at times rehearsed, which led to an adverse credibility finding;

(b)               the Tribunal’s view that the appellant had only a basic interest in, and attachment to, the key tenets of Christianity, and only a recent and superficial association with Christianity, having taken into account;

(i)                  the appellant’s familiarity with Christian concepts (which it found to be limited);

(ii)                the difficulty in eliciting meaningful information from the appellant;

(iii)               letters from a number of members of the Christian clergy, that the Tribunal accepted, but placed little weight on, having viewed the letters as obviously produced, based on what the appellant requested the Pastor to write;

(iv)              photographs provided by the appellant, which the Tribunal considered did nothing more than demonstrate that the appellant attended a single function in Kuala Lumpur in mid-2006 that included a Chinese Christian display; and

(v)                publications provided by the appellant, of which the Tribunal considered that the appellant only had limited knowledge;

(c)                independent country information, which showed that both registered and unregistered churches are generally tolerated in Fujian;

(d)               the appellant’s delayed departure from China, which the Tribunal considered had cast doubt on whether any of the claimed incidents occurred.

Federal Magistrates Decision

7                     The Federal Magistrate dealt with the complaints of bias or bad faith and found that these complaints were not made out (at [29]).

8                     The Federal Magistrate then addressed the claim that the Tribunal had failed to consider evidence (two letters) put forward by the appellant, and found that the Tribunal had plainly taken the evidence into account (at [34]).  His Honour further found that the Tribunal’s findings in relation to the letters were plainly open to it on what was before it (at [39]).

9                     The Federal Magistrate addressed a claim of apprehended bias and found that there was no evidence to support that claim (at [48]).

10                  Addressing the specific complaint of bias in considering the photos and religious promotional material submitted by the appellant, the Federal Magistrate stated that the Tribunal was not required to ‘uncritically accept the applicant’s assertion that the photographs depicted something other than was plainly to be observed from the photographs’(at [59]).

11                  As to the complaint that the Tribunal did not consider the appellant’s response to a letter sent pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’), the Federal Magistrate found that this did not amount to anything more than a complaint that the Tribunal was not persuaded by what the appellant had said (at [64]).

12                  With regard to any complaint of a denial of procedural fairness, the Federal Magistrate found that there was no failure to comply with s 424A of the Act (at [68]) and that the Tribunal satisfied its procedural fairness obligations under s 425 of the Act (at [76]).

Appeal to this Court

13                  On the hearing of her appeal, the appellant was unrepresented and addressed the Court through an interpreter.

14                  The appellant complained that at the Tribunal hearing, the Tribunal’s questioning of her was unclear.  However, there was no transcript of that hearing available and there was nothing on the face of the Tribunal’s reasons for decision to indicate that any of the Tribunal’s questions were ambiguous.

15                  The appellant also complained that she was not given an opportunity at the Tribunal hearing to put her case.  But the absence of any transcript of the Tribunal hearing makes it impossible to evaluate this complaint.  There is certainly nothing on the face of the Tribunal’s decision to indicate that the appellant was not given an opportunity to put her case.

Analysis of Grounds of Appeal

16                  Grounds 1 and 2 on the appeal are directed towards the general complaint of bad faith, apprehended bias or bias on the part of the Tribunal member.  However, as outlined above, the Federal Magistrate rejected these complaints on the basis that there was no evidence to support any such claim.  No error is apparent in his Honour’s reasoning in this regard.

17                  With regard to Ground 3 and the complaint that the Tribunal failed to provide the appellant a ‘fair chance to present her arguments’,this complaint was also rejected by the Federal Magistrate, who noted that the Tribunal had given the applicant the opportunity to address the ‘issues arising from the review’ (at [65]).

18                  Again, as can be seen from the Tribunal’s record of hearing and from the Federal Magistrate’s consideration of the issues arising for determination (at [71] – [76]), there was no failure to afford the appellant the opportunity to present her evidence and arguments pursuant to s 425 of the Act.

19                  As to the complaint in Ground 4 of the Tribunal’s failure to consider the appellant’s response to the Tribunal’s letter dated 18 July 2007, this is manifestly not the case.  The Tribunal recorded the appellant’s response and referred to it at various points throughout its reasons.

20                  A fair reading of the Tribunal’s decision indicates that the Tribunal undertook a detailed examination of all the appellant’s claims and evidence, but simply did not find the appellant to be credible, and accepted independent country information which showed that both registered and unregistered churches are generally tolerated in Fujian, where the appellant was living.

Conclusion

21                  For the above reasons, there was no error on the part of the Federal Magistrate.  The appeal must be dismissed with costs.

Associate:

Dated:         13 November 2008