FEDERAL COURT OF AUSTRALIA

SZNGC v Minister for Immigration and Citizenship [2009] FCA 1377

SZNGC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1065 of 2009

COWDROY J

25 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent in the fixed amount of $3,660 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.

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.

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Lloyd-Jones delivered on 4 September 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 15 January 2009. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of China who arrived in Australia on 11 July 2008. On 14 July 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 8 October 2008. On 5 November 2008 the appellant applied to the Tribunal for a review of that decision.

3                     The appellant claimed primarily to fear persecution by the Chinese authorities because of her attendance at an underground Christian church, and her Christian faith.

4                     The appellant also claimed that she became pregnant in 1995 and was threatened by the authorities with a forced abortion which caused her to go into hiding until 1996. She claimed that after the birth she was forced by the authorities to undergo a sterilisation procedure and she was also fined. She further claimed that in 2006 she and her husband found an abandoned child which they adopted. The appellant stated that the Chinese authorities said that she had another child and therefore harassed both her and her husband and demanded that they pay a fine.

5                     The appellant claimed that her husband was injured in a car accident in 2006 and that following this she and her husband began to attend an underground church twice weekly in 2007. She claimed that on one occasion the police raided a gathering, and detained everyone in attendance. She stated that she was held for three days, physically assaulted and forced to sign a blank piece of paper. She then decided to leave China for Australia. She claimed that since coming to Australia her husband had advised her that the government was investigating her and that he had been questioned by the police on a number of occasions.

THE TRIBUNAL’S DECISION

6                     The Tribunal found the appellant’s knowledge of Christianity to be very limited. It found that her paucity of knowledge of the Bible was inconsistent with her claims to have regularly attended church meetings at which the Bible was read from January 2007 until her departure from China and her claims to have been persecuted on the basis of her Christian faith. The Tribunal noted that the appellant was unable to explain what drew her to Christianity and what she found attractive about the faith. The Tribunal did not accept that if she were genuinely involved in Christianity she would not be able to articulate her feelings about it. The Tribunal also found that the appellant’s evidence of an almost complete lack of involvement in Christianity after her arrival in Australia caused it to form the impression that Christianity was not of great importance to the appellant. Given the unconvincing account of her religious beliefs and her vague account of her alleged arrest and detention, the Tribunal rejected the appellant’s claims of persecution because of her religion.

7                     The Tribunal accepted that the appellant was seriously harmed in China in that she was forced by the authorities to be sterilised after the birth of her child and continued to be harassed by them to pay a fine after the adoption of her second. The Tribunal stated that there was no evidence before it that the law in China was applied in a discriminatory fashion for any Convention-reason and found therefore that the appellant had not been persecuted in the past for a Convention-reason. Further, the Tribunal noted the gap of over ten years between the forced sterilisation and the appellant’s departure from China.

8                     The Tribunal was not satisfied that there was a real chance that the appellant would be persecuted in China for any Convention-reason if she returned. The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a Protection (Class XA) visa.

FEDERAL MAGISTRATES COURT

9                     By Application filed in the Federal Magistrates Court of Australia on 12 February 2009 the appellant sought judicial review of the Tribunal’s decision.

10                  Before Federal Magistrate Lloyd-Jones the appellant claimed:

1.    The Tribunal failed to act judicially and afford procedural fairness.

2.    The Tribunal failed to comply with s 424A of the Act.

3.    The Tribunal failed to comply with s.91R(3) of the Act.

4.    The Tribunal failed to investigate the applicant’s genuine claims.

11                  In respect of the first ground, the Federal Magistrate found that, in the absence of a transcript and any particulars provided by the appellant, there was no evidence before the Court to indicate that the Tribunal failed to comply with the procedural steps as outlined in Part 7, Division 4 of the Migration Act 1958 (Cth) (‘the Act’). Pursuant to s 422B of the Act, such Division is an exhaustive statement of the requirements of procedural fairness.

12                  In respect of the second ground, the Federal Magistrate found that there was no information before the Tribunal which enlivened s 424A(1) of the Act. The only information which was relied upon by the Tribunal in making its decision was that given by the appellant (either to the delegate or the Tribunal), or independent country information, all of which came within the exceptions contained s 424A(3) of the Act. Further, the Federal Magistrate noted that inconsistencies in an appellant’s evidence and a Tribunal’s rejection of that evidence does not enliven the requirements of s 424A citing SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18].

13                  In respect of the third ground, the Federal Magistrate accepted the submissions of the Minister that s 91R(3) of the Act was not engaged, and found that this ground of review was ‘misconceived’.

14                  In respect of the fourth ground, the Federal Magistrate found that it was for the appellant to make out her case, and that there was no obligation on the Tribunal to conduct its own investigations citing Minister for Immigration and Ethnic Affairs v Guo and Another; Minister for Immigration and Ethnic Affairs v Pan and Another (1997) 191 CLR 559 at 596 per Kirby J and SXFB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 164 at [8].

15                  Having found no jurisdictional error in the Tribunal decision, Lloyd-Jones FM dismissed the Application.

APPEAL TO THIS COURT

16                  On 24 September 2009 the appellant filed in this Court a Notice of Appeal from the decision of Lloyd-Jones FM. The appellant raises the following two grounds of appeal:

1.    The Applicant contended in the Federal Magistrates Court that the Tribunal, in finding that the Applicant was not a member of Christian [sic], failed to take into account or have regard to the Applicant’s practice of Christianity in Australia following her arrival in Australia. In the circumstances, The Tribunal fell into jurisdictional error. The Federal Magistrates Court rejected this claim. The Court fell into jurisdictional error in rejecting this claim.

2.    The Federal Magistrates Court failed to consider the Tribunal failed to comply with s 424A of the Act. The Tribunal failed to take into account her husband had investigations by the Chinese authority [sic].

SUBMISSIONS OF THE APPELLANT

17                  The appellant appeared in person assisted by an interpreter. The appellant made numerous submissions, some of which addressed the issues decided by Lloyd-Jones FM, namely the application of s 91R(3) of the Act and whether there had been a breach of s 424A of the Act. However, most of the submissions made by the appellant related to her factual claims that she had been persecuted in China. She continued to assert that she was a Christian and that her testimony to the Tribunal was truthful even though she claimed that she did not have sufficient skill to articulate her answers to questions asked by the Tribunal. She referred to the persecution she had received in consequence of the ‘One Child’ policy prevailing in China and how she was penalised because her natural born child was born to her when she was at a young age. She also referred to persecution which she says she suffered when she adopted a child and was unable to register the child as part of her household.

18                  The appellant also asserted that shortly after her arrival in Australia on 11 July 2008 her husband was contacted by representatives of the Chinese government who were aware of the appellant’s application for refugee status in Australia. The appellant complained that the Australian authorities had revealed to the Chinese authorities the fact of her application. She said that her husband was very concerned for her, particularly as he received a threat that unless she returned to China he would experience difficulty. The appellant expressed her concern for her husband who was caring for the two children, and for her parents-in-law who have also had to share the burden of caring for the children. The appellant also said that her husband’s business, which consisted of a shop, had been closed and that he had no income.

FINDINGS

19                  It is apparent that some of the facts referred to by appellant had not been previously mentioned to the Tribunal nor to the Federal Magistrate. For example, she did not refer to the fact that there had been any communication between the Australian government and the Chinese government in either of the above hearings, even though she said that this had occurred shortly after her arrival in Australia. For the most part, however, the claims of the appellant related to factual information which was before the Tribunal, such as the appellant’s forced sterilisation and the alleged investigation of the appellant’s husband in China after the appellant had left for Australia.

20                  The Court will consider the issues raised in the Notice of Appeal hereunder.

First Ground of Appeal

21                  The first ground of appeal, in referring to the appellant’s conduct in Australia, appears to correspond with the third ground of appeal before the Federal Magistrate, namely the ground regarding s 91R(3) of the Act. Such section states:

(3)     For the purposes of the application of this Act and the regulations to a particular person:

         (a)   in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

         disregard any conduct engaged in by the person in Australia unless:

         (b)   the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

22                  The High Court of Australia has recently (and following the decision of the Federal Magistrate) discussed the interpretation of s 91R(3) in detail in Minister for Immigration and Citizenship v SZJGV and Another (Matter No S577/2008); Minister for Immigration and Citizenship v SZJXO and Another (Matter No S578/2008) (2009) 259 ALR 595. The two majority judgments state that s 91R(3) directs a decision maker to exclude evidence of conduct of an applicant in Australia if that conduct is engaged in solely for the purpose of strengthening a refugee claim. However, a decision maker may consider evidence of conduct of an applicant in Australia if that evidence does not support the applicant’s claim.

23                  The appellant claims that the Tribunal failed to have regard to her practice of Christianity in Australia. Such proposition cannot be supported. The Tribunal expressly asked the appellant whether she attended church in Australia at [38]:

The applicant was asked whether she had been to church since she came to Australia. She was very confused in answering this question, saying that she had gone to church for one to two months in Brisbane. She was asked whether she went to church in Sydney and she said that at the beginning she did not know where to go. It was put to the applicant that there was a large Chinese Christian community in Sydney and it was difficult to believe that she would not know where to go to church. She then said that she had been going to church in Sydney for one to two months. She was asked when she came back to Sydney after being in Brisbane. She could not remember. She was asked when she last went to church, and she eventually said it was last Sunday. She then said she went every week to church. When asked how long she had been doing this, she said that it was two to three weeks.

24                  In making its decision, the Tribunal expressly made findings in relation to the above evidence given by the appellant regarding her practice of Christianity in Australia (at [43]):

The evidence she gave of an almost complete lack of involvement with Christianity after her arrival in Australia also caused the Tribunal to form the impression that Christianity was not of great importance to the applicant.

25                  The Tribunal clearly did take into account the appellant’s practice of Christianity in Australia and concluded that it was minimal and such minimal involvement counted against the appellant’s visa application. Had the appellant been a Christian the Tribunal was entitled to conclude that she would have practised her faith while in Australia. As SZJGV makes clear, the conduct of the appellant in Australia can be used for the purposes of discrediting a claim to fear persecution on a particular basis.

26                  If the purpose of the ground of appeal is not to challenge the Tribunal’s failure to consider the issue but rather to challenge the Tribunal’s factual finding, namely that the appellant did not meaningfully practise her purported faith while in Australia, such finding is for the Tribunal to make, and is not for this Court to challenge: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Even if it were open to the Court to challenge such finding, the Court would refuse to do so as the Tribunal’s finding was clearly open to it on the evidence before it.

Second Ground of Appeal

27                  The second ground of appeal, in referencing s 424A of the Act, appears to correspond with the second ground of appeal before the Federal Magistrate. Section 424A relevantly provides:

(1)     Subject to subsections (2A) and (3), the Tribunal must:

         (a)   give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

         (b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

         (c)   invite the applicant to comment on or respond to it.

(2)     The information and invitation must be given to the applicant:

         (a)   except where paragraph (b) applies--by one of the methods specified in section 441A; …

         …

(3)     This section does not apply to information:

         (a)   that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

         (b)   that the applicant gave for the purpose of the application for review; or

         (ba)         that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

         (c)   that is non-disclosable information.

28                  In light of this section, it is difficult to understand the basis of the submission. A failure by the Tribunal to consider a particular matter, in this case the Chinese authorities’ alleged investigation of the appellant’s husband, could not possibly enliven the requirements of s 424A because the Tribunal is not ‘putting’ anything to the appellant.

29                  If the ground is intended to suggest that the Tribunal did not comply with the requirements of s 424A in some other unparticularised way, the Court notes that the Federal Magistrate considered whether the Tribunal complied with the requirements of such section at [12]-[14] of his decision, and the Court can find no error in his Honour’s reasoning.

30                  In the circumstance that the Tribunal’s failure to consider the appellant’s husband’s alleged harassment is intended to be advanced as an independent ground, the Court notes that the Tribunal made a finding of fact at [44] that:

The Tribunal also rejects the applicant’s claim that her husband has been harassed by the authorities since she left China because of her membership of an underground church.

The Tribunal made such finding because it did not believe that the appellant was a member of an underground church, or was a Christian. The Court repeats what it said at [25]. Such finding is a matter for the Tribunal and was open to it on the evidence before it.

31                  The Court refers to the extensive oral submissions made by the appellant. Except where those issues have been considered above, the Court regards her submissions as essentially repeating the factual material which she advanced before the Tribunal and which was rejected by it. This Court is in no position to challenge those factual findings of the Tribunal

COSTS

32                  The Minister has sought an order pursuant to O 62 r 4(2)(c) of the Federal Court Rules for costs in the proceedings at a fixed amount of $3,660. Ms Carla Mills of Clayton Utz has sworn an affidavit dated 19 November 2009 in support of this order. The Court accepts the costs assessed in the affidavit and the costs order sought will be made.

Associate:

Dated:         25 November 2009