SZEGR v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 775

FEDERAL COURT OF AUSTRALIA

SZEGR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 775

SZEGR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 425 OF 2005

EMMETT J
26 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD425 OF 2005

BETWEEN:	SZEGR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the appeal be dismissed;

2.        the appellant pay the respondent’s costs in the sum of $1,850.

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	NSD425 OF 2005

BETWEEN:	SZEGR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	26 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant claims to be a citizen of the People’s Republic of China (‘PRC’).  He arrived in Australia on 24 February 2004.  On 6 April 2004, the appellant lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 30 April 2004, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 2 June 2004, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 19 July 2004, the Tribunal affirmed the decision not to grant a protection visa.

2. On 25 August 2004, the appellant commenced a proceeding in the Federal Magistrates Court, seeking constitutional relief in respect of the decision of the Tribunal.  The grounds were as follows:

   ‘1.The Tribunal officer did not consider the oral evidence that I gave during my hearing at RRT.

   2.The Tribunal officer refused to consider the evidence of my case.

   3.The Tribunal officer made jurisdiction mistakes, did not explain the reasons why he refused my application.

   4.A copy of the Tribunal's decision is attached.’

3. At some stage prior to a hearing before the Federal Magistrates Court, a document entitled ‘Amended Application’ was filed.  That document is more in the nature of a submission.  It refers to a passage in the reasons of the Tribunal in which the Tribunal said that it had great difficulty in accepting the credibility of the appellant.  The document then asserted that the appellant’s migration agent had made mistakes when ‘filling’ his application and that the Tribunal should not have doubts about the appellant’s credibility because of those mistakes.

4. The document went on to assert that the Tribunal had bias against the appellant when the application was considered because there were doubts about the appellant’s credibility.  It then asserted that the Tribunal also referred to independent information that was not true and referred only to information which supported the judgment, but not information which was favourable to the appellant and which does exist.

5. In its reasons, the Federal Magistrates Court addressed the complaint regarding the Tribunal’s alleged selectivity in its use of country information and that the Tribunal did not use information that was favourable to the appellant.  The appellant was assisted by a migration agent before the Tribunal and was given the opportunity to provide information in support of his claims.  In particular, the primary judge referred to a letter of 3 June 2004, addressed to the appellant.  That letter was addressed to the appellant at the same address to which a letter of 9 June 2004 was also addressed, inviting the appellant to attend a hearing on 14 July 2004.  That letter was apparently received by the appellant, because he attended that hearing.

6. On 1 March 2005, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $4,000.  On 21 March 2005, the appellant filed a notice of appeal to this Court from the orders made by the Federal Magistrates Court.  The only ground of appeal is as follows:

   ‘The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.’

7. When the matter came before me for directions on 13 April 2005, the appellant appeared in person.  On that occasion I directed the appellant to file and serve an amended notice of appeal on or before 11 May 2005 and to file and serve a written outline of submissions five working days prior to the hearing.  No submissions have been filed.  No amended notice of appeal has been filed.

8. When the matter was called on for hearing today, the appellant appeared in person and was invited to make oral submissions in support of his appeal.  The only submissions he made were that he did not receive the letter of 3 June 2004 and that he wanted more time in order to gather further documentary evidence to put before the Court.

9. The Tribunal found that the appellant arrived in Australia on 24 February 2004 on a United Kingdom and Northern Ireland passport, under a name different from that he claims is his real name.  The Tribunal was not able to form a view as to whether a copy of a PRC passport was a genuine PRC passport and, if so, whether it was the appellant’s passport.  Nevertheless, the Tribunal was willing to give the appellant the benefit of the doubt and accept that, based on the copy of the PRC document and other documents provided, the appellant was a legitimate holder of a PRC passport that has now been lost.

10. The Tribunal found, however, that, having regard to the continued representation by the appellant in Australia that he has a different identity, there was doubt as to the credibility and truthfulness of the appellant’s evidence.  The Tribunal also referred to inconsistent and contradictory evidence and other factors that gave rise to considerable doubt as to the credibility of the appellant’s evidence.  The Tribunal found that the appellant is not a Falun Gong practitioner, as he claimed, and that the appellant has involved himself in that activity for the purpose of assisting his application for a protection visa. 

11. The Tribunal observed that, notwithstanding that he was assisted by an adviser, at least in the initial stages, the appellant made no specific claims in his visa application concerning possible human rights abuse and political oppression that might have given rise to a fear of persecution if he returned to China.  The Tribunal observed that the appellant did not provide it with any indication that he was likely to experience any form of serious harm amounting to persecution for a Convention reason, if he were to return to China.

12. The reasons of the Minister’s delegate included a statement that the appellant has not provided any supporting evidence to substantiate his claims of having been a practitioner and activist of the Falun Gong movement in China, or that he had joined, or partaken in, any such group practice or membership since his arrival in Australia.  Further, in the letter of 9 June 2004, inviting the appellant to attend a hearing before the Tribunal, the Tribunal said as follows:

    ‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
    …

    Please read and complete the enclosed form carefully; and

    ·tell us if you are coming to hearing or not coming to the hearing;

    ·complete the “Witnesses” part of the form if you want the Tribunal to get oral evidence from any other person... 

    ·send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator.’

13. The letter of 3 June 2004, to which reference was made by the primary judge, also said:

    ‘You should immediately send us any documents, information or other evidence you want the Tribunal to consider.  Any documents not in English should be translated by a qualified translator.’

14. There was no evidence concerning non-receipt of the letter of 3 June 2004:  simply an assertion before this Court.  Whether that assertion was made before the primary judge is not clear, although the appellant asserted today that he had complained about non-receipt of the letter of 3 June 2004 to the primary judge.  Whether or not he received that letter, he has not asserted that he did not receive the letter of 9 June 2004.  Indeed, he must have received it because he attended the hearing.

15. The Federal Magistrates Court dealt with the complaints made by the appellant in his written submission.  There is, on the face of it, no apparent error by the Federal Magistrates Court.  The only matter complained of before this Court is a failure to comply with procedures.  This seems to be directed to the failure to inform the appellant that the Tribunal was not persuaded by the material that it had.  That is clearly a complaint that cannot stand.  There is no substance in the ground of appeal.  Nor does there appear to be any substance in the grounds of review before the Federal Magistrates Court.  In those circumstances the appeal should be dismissed.

16. The Minister asks that the Court assess the costs of the appeal in the sum of $1,850.  The appellant did not wish to say anything against that proposal.  I therefore propose to order the appellant pay the respondent’s costs in the sum of $1,850.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             10 June 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 May 2005
Date of Judgment:	26 May 2005