FEDERAL COURT OF AUSTRALIA

SZOJB v Minister for Immigration and Citizenship [2010] FCA 1252

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(Revised from transcript)

1    The appellant appeals from a judgment of the Federal Magistrates Court of Australia, delivered on 20 July 2010, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 March 2010. 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 24 November 2007. On 12 August 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A Delegate of the first respondent refused the application for a protection visa on 23 November 2009. On 19 December 2009, the appellant applied to the Tribunal for a review of that decision.

3    In a statement accompanying her application for a protection visa, the appellant claimed that she and her husband participated in local family church activities. She said that the church was also called “Shouting School.” She claimed that her husband started to believe in Christianity in May 2005 and that she had started attending church activities with him in May 2006. She claimed that members of the church are persecuted by the Chinese government. She claimed that in March 2007, she and her husband assisted Dagang Lin, a leader of the church, to escape from the authorities; that, in April 2007, she and her husband were taken to Fuqing Police Station and questioned over the assistance they had given to Mr Lin; and that she was released after one week, but that her husband was sentenced to three months in a labour camp on the charge of giving shelter to a criminal.

4     In her statement, the appellant said that she travelled to Australia in November 2007 as a guardian of her son. Her husband remained in China, apparently with their youngest child. She claimed that in March 2009, she sent some Chinese Christian publicity materials to her husband in China. She claimed that on 15 July 2009, she received a telephone call from her father, who told her that her husband had been arrested while participating in a prayer session, that the police had raided the house in which the session was being held and that the police found the materials which the appellant claimed to have sent her husband. She claimed that during torture and interrogation, her husband had told police that she had sent him the materials. She claimed that on 23 July 2009, her father called her to inform her that her husband had been sentenced to six months re-education on a charge of distributing illegal religious materials. She claimed that her family had told her that she would be arrested if she returns to China.

5    On 23 November 2009, the Delegate refused the appellant’s application for a protection visa.

the tribunal’s decision

6    The appellant attended a hearing before the Tribunal on 18 February 2010. She gave oral evidence with the assistance of an interpreter. As I have recorded, on 19 March 2010 the Tribunal affirmed the Delegate’s decision.

7    In its decision record, the Tribunal set out the statement accompanying the appellant’s protection visa application in full. The Tribunal noted that, at the hearing, the appellant had been asked whether the information contained in her application and statement was a true and correct account of her claims for protection. She said that it was.

8    The Tribunal’s decision record sets out, in summary form, the substance of the questions asked of the appellant and her responses to them. In some cases, her verbatim responses have been recorded.

9    The Tribunal found the appellant “to be completely lacking in credibility”. It detailed its reasons for that finding. Those reasons included the following:

(a)    The appellant was often evasive and unresponsive with regard to the Tribunal’s questions.

(b)    The appellant’s answers were vague and generalised and that the only answers that were comprehensive related to key components of her statement, accompanying her protection visa application. This led the Tribunal to conclude that the appellant had memorised key components of her statement and often recited them, regardless of the Tribunal’s questions.

(c)    The appellant’s inability to effectively respond to the Tribunal’s questions could not be attributed to her claimed illiteracy.

10    The Tribunal also had regard to the following considerations:

(a)    The significant delay in the lodgement of the appellant’s application for a protection visa. The Tribunal did not accept the appellant’s explanation that she had been unaware of protection visas, given that the appellant had engaged a migration agent in China to obtain a student visa for her son and a parent guardian visa for herself. The appellant’s failure to take steps to inquire about being able to remain in Australia on a permanent basis led the Tribunal to conclude that she did not have a real fear of persecution in China and called into question her claims that she had experienced persecution in China.

(b)    The appellant’s inability to provide sound reasons why she converted to Christianity late in life (at 36 years of age) and joined an underground church movement, with knowledge that it was illegal and targeted by police. The Tribunal did not accept the appellant’s evidence that she had done so because she thought that Christians were “nice and polite people.”

11    The Tribunal’s finding with respect to the appellant’s lack of credibility was fortified by what it found to be the appellant’s complete lack of understanding of Christian beliefs, Christian philosophy, the Bible or any component of Christianity that could lead to a finding that the appellant was a genuine Christian. The Tribunal found that the appellant’s lack of knowledge of the basic tenets of Christianity could not be due to her claimed illiteracy.

12    These findings led the Tribunal to form the view that the appellant had failed to give a coherent account of her claimed circumstances that could be expected from a person who had experienced the claimed events. Accordingly, it found that the appellant had fabricated her claims for the purpose of her protection visa application. It found that the appellant was not a member of an underground local family church; that her husband was not a member of an underground church; and that the appellant had not sent Christian materials to her husband in China. It did not accept that the appellant had ever been detained or arrested, or that the appellant’s husband had been detained and subjected to re-education because of his religious beliefs. It did not accept that the appellant had ever attended a church in Australia or practised Christianity in Australia.

13    The Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention-based reason. It therefore concluded that the appellant was not a person to whom Australia owed protection obligations under the Convention and affirmed the decision under review.

federal magistrates court

14    On 21 April 2010 the appellant filed an application in the Federal Magistrates Court for a review of the Tribunal’s decision. The grounds of the application, in exact terms, were as follows:

1.    RRT did not believe that the evidences provided by me are true. That’s not fair.

2.    RRT use failed cases against my application. They did not believe the whole things I said are true.

3.    RRT did not consider that I would be put in jail if I return. I have risk to go back to China.

15    With respect to the first ground the Federal Magistrates Court noted that it did not have jurisdiction to determine whether the Tribunal’s decision was fair or unfair. It found that the Tribunal’s findings were findings of fact within jurisdiction. Further, it found that the Tribunal gave cogent reasons for its findings which were open to it on the material that was before it.

16    The Federal Magistrates Court also found that the requirements of Division 4, of Part 7 of the Migration Act 1958 (Cth), had been complied with. Also the Federal Magistrates Court noted that the appellant had not adduced any evidence to challenge the Tribunal’s account of the hearing.

17    The Federal Magistrates Court thus concluded that Ground 1 in the grounds of the application before it was not made out.

18    In relation to Ground 2 of the application, the Federal Magistrates Court noted that the ground was difficult to discern. It found that if the appellant was meaning to assert that the Tribunal relied on case authorities that had subsequently been overturned on appeal, then there was no evidence to support that contention. It held that the appellant’s complaint that the Tribunal did not believe her did not rise any higher than a request for that Court to engage in impermissible merits review. It found that the Tribunal’s finding as to credibility was within the proper exercise of its jurisdiction.

19    In relation to Ground 3 of the application, the Federal Magistrates Court found that that ground failed as a matter of fact. The Tribunal had noted the appellant's claims in that regard. The Federal Magistrates Court also noted that in any event the Tribunal had found contrary to the matter claimed in Ground 3 of the application that there was no real chance that the appellant would be persecuted if she were to return to China.

appeal to this court

20    The appellant filed a notice of appeal in this Court on 9 August 2010. The grounds of appeal, in exact terms, are as follows:

1.    The Federal Magistrate did not consider my evidence, instead he relied on the Tribunal findings which were made in error.

2.    The tribunal did not consider my evidence, instead he make decision base on old country information from long time ago.

3.    I wish to have justice as I am in fear of life if I return to my homeland.

21    Directions were made in this appeal for the filing and service of written submissions. The Minister filed a comprehensive outline of submissions on 3 November 2010. This was in the absence of the appellant filing any written submissions and, therefore, without knowledge of the submissions which the appellant wished to advance in support of the grounds of appeal.

22    The appellant appeared in person today assisted by an interpreter. She made brief oral submissions. She submitted that she did not believe the Tribunal had treated her fairly because the Tribunal did not believe her, even though all the things she had said to the Tribunal were true.

consideration

Ground 1

23    The Federal Magistrates Court recorded at [53] of its reasons that the appellant did not put any evidence before that court other than the Tribunal's decision record itself. There is no challenge to that finding in this appeal. When I questioned the appellant about what she meant by "my evidence" in Ground 1 of the notice of appeal, she did not provide any meaningful response other than to refer to the fact of her claimed detention. In light of the finding of the Federal Magistrates Court regarding the evidence before it and in light of the appellant's response this morning, I can only conclude that the evidence to which this ground refers is the material placed before the Tribunal by the appellant in support of the claims that she had made.

24    With that understanding in mind, it is plain that this ground of appeal is misconceived. It proceeds on the false premise that it was open to the Federal Magistrates Court to embark upon a review of the merits of the appellant's application for a protection visa and to supplant the Tribunal's findings of fact with the Federal Magistrates Court's own findings. The notice of appeal does not identify what findings by the Tribunal were allegedly erroneous and why there were erroneous. It would seem, however, that what the ground seeks to advance is a general contention that, in undertaking the review, the Federal Magistrates Court should have “considered”, in the sense of “accepted”, the appellant’s claims in preference to the Tribunal’s findings about them, particularly the Tribunal’s finding that the appellant did not have a well founded fear of persecution for a Convention based reason. It was not, of course, the task of the Federal Magistrates Court to embark upon a review of that kind. It would have been an error had the Federal Magistrates Court proceeded to do so.

25    At [47] – [48] of its reasons the Federal Magistrates Court said this:

47.    To the extent that this is also a complaint of unfairness about the outcome then this Court does not have jurisdiction to determine whether the Tribunal’s decision was “fair” or “unfair”. The Tribunal is required to provide fairness in the procedures that it employs and applies (see further below). But as to the outcome, it is as the High Court said in SZBEL at [25] that procedural fairness requires a “fair hearing not a fair outcome” (with reference also to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 per Brennan J).

48.    On what is before the Court the Tribunal’s findings were findings of fact within jurisdiction. These were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [67], per McHugh J). The Tribunal gave cogent reasons for its findings which were open to it on what was before it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64]-[69] per Tamberlin and Nicholson JJ).

26    No error is revealed in this approach. Ground 1 of the appeal fails.

Ground 2

27    This ground of appeal raises a matter that was not raised in the appellant’s application before the Federal Magistrates Court. A ground not raised before the Federal Magistrates Court may be raised on appeal where it is expedient in the interests of justice to do so. However, leave of this court is required before reliance can be placed on such a ground. I have proceeded on the footing that the appellant seeks that leave. The Minister opposes the granting of the leave.

28    The approach of the Court to determining the question whether leave should be granted is set out in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] to [11]. One issue to be considered is whether the new legal argument has reasonable prospects of success.

29    The Federal Magistrates Court’s decision records at [51] that the appellant did not put any evidence before that Court to challenge the Tribunal’s account of the hearing. I proceed on the basis that the Tribunal’s decision record provides a complete and accurate statement of the evidence before it and of its findings, reasons and conclusions.

30    Proceeding on this basis, Ground 2 is simply devoid of any factual foundation. It is clear on reading the Tribunal’s decision record that it has set out in full the appellant’s statement to the Department, as well as a summary of the questions asked of, and answers given by, the appellant.

31    Moreover, the Tribunal’s decision was not based on “old country information from long time ago.” The Tribunal’s decision record quotes from part of the Delegate’s reasons for decision, which sets out an extract from a report from the United States of America Commission on International Religious Freedom. The substance of the extract is that there has been an improvement in the Chinese Government’s official attitude towards religious freedom in China. Plainly, this material was before the Tribunal in this form. However, the Tribunal’s decision was based on a complete rejection of the factual basis for the appellant’s claims, not country information.

32    The findings on which the Tribunal’s decision was based were open to it on the facts before it. This ground of appeal has no prospects of success. I refuse leave to permit the appellant to rely on it.

Ground 3

33    This ground does not raise, as a matter of substance, any appealable error on the part of the Federal Magistrates Court.

disposition

34    The appeal will be dismissed with costs.

35    The orders of the court are:

1    The appeal be dismissed.

2    The appellant pay the first respondent’s costs.

Associate:

Dated:    18 November 2010