SZBWY v Minister for Immigration & Citizenship - [2008] FCA 1188

FEDERAL COURT OF AUSTRALIA
SZBWY v Minister for Immigration & Citizenship
[2008] FCA 1188
SZBWY v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 943 OF 2008
GORDON J
12 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 943 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBWY
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GORDON J

DATE OF ORDER:

12 AUGUST 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.

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 943 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBWY
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GORDON J

DATE:

12 AUGUST 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an appeal against an order of Federal Magistrate Nicholls of 12 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 18 October 2006. The Tribunal affirmed a decision of a delegate of the first respondent (“the first respondent”) to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (“the Act”).
PROCEDURAL HISTORY
The appellant is a citizen of the People’s Republic of China (“China”) who first entered Australia on 7 April 2002. On 19 April 2002, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known). The first respondent refused the application for a protection visa on 21 June 2002.
On 23 July 2002, the appellant applied to the Tribunal for a review of that decision. On 25 September 2003, the Tribunal affirmed the decision of the first respondent. The appellant sought review of the Tribunal’s decision and by consent, on 13 April 2006, Gyles J quashed the decision of the Tribunal and remitted the matter to the Tribunal. The matter was reconsidered by the Tribunal and, on 17 October 2006, the Tribunal again affirmed the decision of the first respondent not to grant a protection visa. On 27 February 2007, again by consent, Cameron FM quashed the decision of the Tribunal and remitted the matter to the Tribunal.
On 18 October 2007, the Tribunal again affirmed the decision of the first respondent.
Before the Tribunal, the appellant claimed to fear persecution in China as a Falun Gong practitioner and due to his opposition to the Chinese Government. He claimed, before coming to Australia, to have practised Falun Gong in Papua New Guinea where he lived from June 1995 to April 2002. Whilst in Australia, he claimed to have participated in demonstrations in front of the Chinese Consulate in Sydney.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SZBWY v Minister for Immigration & Citizenship

Details

AGLC: SZBWY v Minister for Immigration & Citizenship [2008] FCA 1188
Case: [2008] FCA 1188
Decision Date: 12 August 2008

CaseChat Overview and Summary

In the case of SZBWY v Minister for Immigration & Citizenship, the appellant, a Chinese national, appealed a decision of the Refugee Review Tribunal, which had dismissed his application for a protection visa. The appellant claimed to fear persecution in China as a Falun Gong practitioner and due to his opposition to the Chinese Government. He alleged that if he returned to China, he would not be allowed to take his collection of Falun Gong material back to China and would not be allowed to practise Falun Gong. He also claimed to fear returning to China for two additional reasons – that his wife was pregnant in breach of the one-child policy and because he did not have household registration in China.

The Tribunal found that the appellant's claims were not credible and that the appellant was not a Falun Gong practitioner. The Tribunal concluded that the appellant's application did not invoke protection obligations in Australia and dismissed his application for a protection visa. The Federal Magistrates Court subsequently dismissed the appellant's application to review the Tribunal's decision. The appellant then appealed to the Federal Court, raising similar grounds of appeal as those raised in the Federal Magistrates Court.

The court found that the Tribunal had properly considered the appellant's claims and had provided adequate reasons for its decision. The court held that the Tribunal was not biased against the appellant and that it had not failed to consider the appellant's application according to s 424A of the Act. The court also held that the Tribunal had not failed to refer to proper independent information for the consideration of the appellant's application. The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GORDON J

Before the Tribunal, the appellant claimed to fear persecution in China as a Falun Gong practitioner and due to his opposition to the Chinese Government. He claimed, before coming to Australia, to have practised Falun Gong in Papua New Guinea where he lived from June 1995 to April 2002. Whilst in Australia, he claimed to have participated in demonstrations in front of the Chinese Consulate in Sydney. If he were to return to China, he claimed he would not be allowed to take his collection of Falun Gong material back to China and would not be allowed to practise Falun Gong. The appellant also claimed to fear returning to China for two additional reasons – that his wife was pregnant in breach of the one-child policy and because he did not have household registration in China.THE TRIBUNAL DECISION The Tribunal concluded, based on the appellant’s lack of knowledge, that it was not satisfied the appellant’s application invoked protection obligations in Australia. The Tribunal was not satisfied on the evidence before it that the appellant was a Falun Gong practitioner. The Tribunal did not accept that the appellant was a witness of truth in relation to the events he alleged took place in China or about his Falun Gong practice. The Tribunal did accept that whilst the appellant was in Australia he had attended some Falun Gong practises and protests but was not satisfied that the conduct was engaged in otherwise than for the purpose of strengthening his claim to be refugee. Accordingly, the Tribunal disregarded that conduct in accordance with s 91R(3) of the Act. Further, the Tribunal found that if the appellant returned to China, he would not suffer harm or persecution because of his wife’s pregnancy. In relation to the allegation that the appellant might be refused household registration, the Tribunal found that the refusal did not amount to serious harm and was, in any event, not a Convention reason invoking protection obligations in Australia.THE COURT BELOW Before the Federal Magistrate, the appellant filed an application. The stated grounds were in the following terms:1.The Tribunal failed to consider the claism [sic] of my application because of the Tribunal’s bias against me. The Tribunal failed to refer to proper independent information for the consideration of my application.2.The Tribunal failed to consider my application according to s 424A of the [Act]. The Tribunal had not notified in writing the reason or part of the reason for affirming the decision.3.The Tribunal disbelieved that I am a Falun Gong member because of the Tribunal’s bias against me.APPLICATION TO THIS COURT The Notice of Appeal filed in this Court on 24 June 2008 was substantially a reproduction of the application filed in the Federal Magistrates Court (see [7] above). The grounds of appeal in this Court were:1.The Tribunal failed to consider the claims of my application for a protection visa because of the bias against me. 2.The Tribunal failed to consider my application according to s 424A of the [Act]. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reasons.3.The Tribunal failed to refer to proper independent information for the consideration of my application.The changes are in italics.

Ratio Decidendi

Legal Principle Established

Established by: GORDON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 943 OF 2008

JUDGE:	GORDON J
DATE OF ORDER:	12 AUGUST 2008
WHERE MADE:	SYDNEY

JUDGE:	GORDON J
DATE:	12 AUGUST 2008
PLACE:	SYDNEY