SZLWI v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 29 August 2008
• Neutral Citation: [2008] FCA 1330

FEDERAL COURT OF AUSTRALIA

SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330

MIGRATION - whether denial of procedural fairness - whether compliance by Refugee Review Tribunal with s 424AA Migration Act 1958 (Cth) - whether the Tribunal failed to give particulars of information which might be the reason or part of the reason for the Tribunal to affirm the decision under review - no breach of s 424AA.

MIGRATION - whether jurisdictional error - whether the Tribunal failed to ignore conduct of appellant in Australia in contravention of s 91R(3) - proper construction of s 19R(3) - contravention established - refused in exercise of discretion.

INTERPRETATION – s 91R(3) Migration Act not limited to sur place claims - characterisation of appellant’s conduct in Australia - s 91R(3) applies to conduct intended to be used as corroborative evidence of appellant’s claimed fear of persecution in own country.

Migration Act 1958 (Cth) ss 91R(3), 424A, 424A(2A), 424A(3)(b), 424AA

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR cited

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

NBKT v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 419 cited

Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82 cited

R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited

SDAQ v Minister for Immigration and Multicultural Affairs (2003) 199 ALR 265 cited

Stead v State Government Insurance Commission (1986) 161 CLR 141 cited

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609cited

SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 considered

SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 cited

SZHAY v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 199 FLR 148 referred to

SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 considered

SZHFE v Minister for Immigration and Citizenship [2007] HCA Trans 10 cited

SZJGV v Minister for Immigration and Citizenship (2008) 102 ALD 226 considered

SZMCD v Minister for Immigration and Citizenship [2008] FMCA 1039cited

S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112cited

SZLWI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 940 OF 2008

GILMOUR J

29 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 940 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLWI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. Any written submissions on the questions of costs be filed and served by the 8 September 2008 by the respondent.

3. Any submissions in reply be filed and served by the 15 September 2008 by the appellant.

4. Reserve costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 940 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZLWI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GILMOUR J
DATE:	29 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate of 11 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 26 November 2007 and handed down on 18 December 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

PROCEDURAL HISTORY

2 The appellant is a citizen of China who arrived in Australia on 25 March 2007. On 8 May 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the first respondent refused the application for a protection visa on 30 July 2007. On 24 August 2007 the appellant applied to the Tribunal for a review of that decision.

3 Before the Tribunal the appellant claimed that he was persecuted by the Chinese government because of his religious beliefs and membership of an underground Christian Church. He claimed that he had been detained a number of times because of his religious beliefs. First in March 1998 by the Yuhong Branch of Shenyang Municipal Police Security Bureau where he was fined a substantial amount of money and forced to sign a letter saying he would give up his involvement in the underground church. He claimed that he was detained by the Police for 7 days after attending a family gathering in June 2001. The appellant said that during this time he was beaten and his family, job and fortune were threatened if he did not stop participating in illegal church activities. He claimed that his home was broken into by police again in September 2004 and his Bibles and other relevant documents were taken. He and his family were allegedly detained until a sum of money was paid for their release. The appellant said that this time he was detained for a period of 15 days. The appellant alleged that the Chinese authorities sealed his cow farm because of his continued involvement with the underground church. He claims that his wife has told him, since his departure form China, not to return.

4 The appellant also claimed that he was fined a lot of money and his farm in the Heilongjiang province was confiscated for breaching China’s one child policy. He claimed that the authorities tried to cut off his means of earning an income.

THE TRIBUNAL DECISION

5 The Tribunal determined that the appellant was not a credible witness and did not accept the appellant's claims and evidence in relation to his Christian beliefs and practice in China. In coming to this conclusion the Tribunal had regard to the appellant's limited knowledge and lack of knowledge in relation to a number of significant aspects of Christianity. In particular it found that he:

(a) was unable to explain which group or denomination he belonged to;

(b) gave vague and general evidence regarding the religious gatherings that he attended;

(c) was not aware of when Christ’s crucifixion took place;

(d) lacked knowledge of the trinity;

(e) He had no knowledge of how the bible was set out or structured, notwithstanding that he had claimed to have studied the bible;

(f) was not able to recite the Lord’s prayer;

(g) lacked knowledge of Communion.

6 The Tribunal was not satisfied that the appellant’s attendance at church in Australia had been conduct otherwise than for the purpose of strengthening his claims to be a refugee. Accordingly, pursuant to s 91R(3) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal disregarded this aspect of his claim. As the Tribunal did not accept that the appellant had ever been a genuine practising Christian in China or Australia, the Tribunal also did not accept that there was a real chance the appellant would be persecuted for reason of his religion if he returned to China now or in the reasonably foreseeable future.

7 In relation to the appellant's claim that he was harshly treated by authorities following his breach of China's one child policy, the Tribunal accepted that those penalties may have been significant and that he may have felt harshly treated and compelled to relocate as a result. However, on the basis of the appellant's evidence, the Tribunal noted that such fines were imposed some years ago, that the appellant had been able to operate another business and that there was no evidence that the authorities would continue to penalise the appellant.

8 The Tribunal also accepted that the appellant might be experiencing problems relating to his cow farm and that some of those problems may have arisen from his tax obligations. However, the Tribunal did not accept that the problems arose because of his religion or that the taxes imposed were imposed in a discriminatory manner for a Convention reason.

9 Finally, while accepting the views expressed by the appellant in relation to the Chinese Community Party, on the evidence before it, the Tribunal did not accept the appellant would suffer serious harm on account of those views on his return to that country.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

10 Before the Federal Magistrate the appellant claimed that:

1. the tribunal denied the appellant procedural fairness as it failed to give the appellant information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review as required by s 424A of the Migration Act 1958 (Cth) (‘the Act’).

2. the Tribunal incorrectly applied the law in finding that the one child policy was a law of general application.

3. the Tribunal was subjective in its approach to the appellant’s case and therefore the Tribunal decision was affected with bias.

4. the appellant’s son, who gave evidence, was scared due to the Tribunal’s attitude towards him.

11 The Federal Magistrate was satisfied that the Tribunal complied with s 424AA of the Act by putting to the appellant at the Tribunal hearing...