SZFCL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1107

FEDERAL COURT OF AUSTRALIA

SZFCL v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1107

MIGRATION – no issue of principle

SZFCL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 787 OF 2005

CONTI J
11 AUGUST 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 787 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFCL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	11 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the respondent’s costs assessed at $2,500.00.

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 787 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	CONTI J
DATE:	11 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The appellant’s claims and the Tribunal’s decision

1. This is an appeal from the orders and reasons for judgment of Federal Magistrate Scarlett, made and given on 4 May 2005 that dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 4 November 2004.  The Tribunal affirmed the decision made by a ministerial delegate on 28 May 2004 refusing the appellant’s application for a protection (Class XA) visa. 

2. The appellant is a citizen of Hong Kong who arrived in Australia on 21 April 2004.  In her written statement attached to her protection visa application, the appellant claimed that she had left Hong Kong because of her ‘political opinions’ and because of her involvement in Falun Gong activities for which she had been allegedly placed by Chinese authorities on a ‘black list’.  The appellant also complained of suffering unemployment ‘for a long time’ whilst in Hong Kong and not having freedom of ‘political opinions’.  She repeated those Falun Gong claims in a short written statement contained in her application to the Tribunal for review of the delegate’s decision. 

3. The appellant attended a hearing held before the Tribunal on 5 October 2004, during which she gave oral testimony which is recorded in the Tribunal’s reasons for decision.  The Tribunal asked the appellant why she had left Hong Kong.  The appellant replied that she left due to her unemployment and her inability to find work, as well as because of a fear that she was ‘not safe because her life was threatened’.  The appellant told the Tribunal that the threat to her life came from the heightened risk of her being robbed and beaten in the streets of Hong Kong following its reunification with China, which was said to have led to an influx of people arriving in that territory from China.  The Tribunal recorded that at one point in the hearing, the appellant denied that she had ever been detained, arrested or subject to any physical harassment in Hong Kong or China, yet the appellant then claimed to have been arrested for her Falun Gong activities.  When asked to explain the inconsistency in those responses, the appellant stated that she had not been arrested, but that she had escaped from the Chinese authorities who tried to arrest her.  The Tribunal asked the appellant when it was that she left China, and the appellant replied that she had done so in 1996.  The Tribunal then put to her country information to the effect that Falun Gong was not banned in China until 1999.  The appellant contended that the Chinese authorities had secretly prosecuted members prior to that date.  In relation to her stay in Hong Kong, the appellant claimed that she had not practised Falun Gong during that time because she had been too afraid of possible arrest.  The Tribunal found that the appellant did not have a well-founded fear of persecution for practising Falun Gong in Hong Kong, in light of independent country information about the Hong Kong Basic Law that provided for freedom of religion, and because the appellant was not a Falun Gong practitioner.

4. The Tribunal also investigated the appellant’s other claim that she was at risk of persecution for her ‘political opinions’.  The appellant did not elaborate upon the claim in any way whatsoever.

5. The Tribunal found that the appellant was not a person to whom Australia owed protection obligations.  In respect of the appellant’s general claims about the economic and social situation of Hong Kong, the Tribunal found that those lacked the necessary Convention nexus.  The Tribunal expressed numerous concerns about the appellant’s claim to fear persecution by reason of being a Falun Gong practitioner, for instance her failure to advance that claim until specifically asked about it by the Tribunal during the hearing, and because of her admitted failure to have suffered any persecution in Hong Kong by reason of her decision not to practise Falun Gong since 1996.  The Tribunal also did not accept the appellant’s claims to have suffered persecution for her political opinions, first because she did not elaborate sufficiently upon those claims (thus implying that the appellant did not have any), and secondly on the basis of independent country information detailing the relative freedom of political expression prevailing in Hong Kong, as opposed to mainland China. 

   The appellant’s application to the Federal Magistrates Court for judicial review of the Tribunal’s decision and the grounds raised in relation thereto

6. The appellant applied for judicial review of the Tribunal’s decision and her amended application contained the following grounds (read literally):

   ‘1.       I found jurisdiction error with the procedure of Refugee Review Tribunal when it considered my application for a protection visa.

   2.        The Tribunal failed to exercise its jurisdiction as it failed to produce any evidence to prove that I would not be persecuted on my return to China and Hong Kong.

   3.        The Tribunal failed to exercise its jurisdiction as it misunderstood the situation in Hong Kong.  The political situation in Hong Kong is much different from the situation before 1997.  After the Government becomes to be controlled by the Chinese authorities the policies and system in Hong Kong remained the same on the surface.  As a matter of fact it was totally different.  The Tribunal only chose the good information which was favourable to the Tribunal's decision.  In fact all this information was wrong information and cannot be used as evidence to justify the decision of the RRT.’

7. The appellant also filed an affidavit alleging that the Tribunal member had been actually biased against her. 

8. The Federal Magistrate recorded in his reasons that he asked the appellant about each of the grounds she had pleaded but that she was not able to provide any explanation of them.  His Honour observed in relation to the first ground that the appellant was unable to point to any errors in the procedure adopted by the Tribunal, and further observed that the thrust of the appellant’s application generally was that it sought to challenge the merits of the Tribunal’s decision.  His Honour additionally observed that even if the Tribunal had made an error of fact, that would not amount to a jurisdictional error.  The Federal Magistrate thereupon found that the second ground was similarly not made out, since there was no obligation on the Tribunal to disprove the appellant’s claim, or to produce evidence rebutting her claim, and concluded that the appellant had simply failed to make out her claim to the Tribunal.  His Honour rejected the ground of bias in the absence of any particularisation or explanation by the appellant or indeed any evidence. 

   Appeal to the Federal Court

9. The appellant’s notice of appeal, which was filed on 20 May 2005, contained the following purported grounds of appeal (read literally):

   ‘1.       The Tribunal fell into jurisdictional error.

   2.        The Judge of the Federal Magistrates Court of Australia did not consider some evidence and arguments that I provided at the hearing.

   3.        RRT failed to refer to relevant independent information for the consideration of my application.

   4.        The Tribunal failed to assess the chance of my being persecuted on my return to Hong Kong.’

10. The appellant also filed an affidavit which repeated each of the above grounds contained in the notice of appeal and added the following (read literally):

    ‘…The Tribunal failed to exercise its jurisdiction to raise reasonable grounds for not granting a protection visa to me…

    …I believe that the Judge did not consider some evidence and materials that I has submitted to the court.  As there is jurisdictional error found with the decision from RRT, I hope that I can be given another chance to explain my case in more details at RRT…’

    That first purported ground merely seeks to restate one of the grounds rejected (and in my view correctly rejected) by the Federal Magistrate, being that the Tribunal was under an obligation to somehow rebut the appellant’s claims.  For the reasons provided by the Federal Magistrate, that ground must be dismissed.  The second ground contained in the affidavit contends that the Federal Magistrate failed to consider materials placed before it by the appellant.  The appellant’s affidavit was discussed at length by the Federal Magistrate, as were her oral submissions (such as they were).  I also reject that ground of appeal. 

11. Pursuant to directions made on 22 June 2005, the appellant was required to file and serve written submissions no later than 14 days before the hearing date.  The appellant failed to comply with this order.  When I asked the appellant to provide some explanation of her grounds of appeal or to say anything at all about her appeal, she replied that she did not know what to say.

12. Counsel for the Minister addressed each ground of appeal seriatim in his written submissions.  I adopt each of those submissions.

13. The Minister submitted that ground one was a bald assertion that the Tribunal had fallen into jurisdictional error without specifying any particulars or reasons for why the Court below was asserted to have made an error of law. 

14. In response to the second ground the Minister submitted that this was a generalised assertion of a failure by the Federal Magistrate to deal with the appellant’s submission and evidence, which was contradicted by the record.  As I discussed above, that is correct.

15. The Minister submitted that the third ground asserted a failure on the part of the Tribunal to consider some unparticularised information.  No reference is made to the judgment of the Court below from which the present appeal is brought, nor was it explained how or why such a failure on the part of the Tribunal, even were it to be established, could amount to a jurisdictional error. 

16. The final ground was also said to assert a failure on the part of the Tribunal, being that the Tribunal did not consider the issue of whether the appellant had a well-founded fear of persecution for a Convention reason if she was to return to Hong Kong.  The Minister correctly submitted that this contention was completely misconceived, since as was clear from the Tribunal’s reasons for decision the Tribunal did consider that issue but was not satisfied of the appellant’s claims.

    Conclusion

17. I accept and adopt the Minister’s submission that despite the grounds of appeal having been pleaded in the way in which they appear, the appellant thereby seeks to challenge the Tribunal’s decision on the merits.  That is of course insufficient and impermissible.  The Tribunal’s finding was open for the reasons that it provided, including the country information to which it referred. 

18. The appeal must be dismissed and I order the appellant to pay the respondent’s costs of the appeal assessed at $2,500.00.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            15 August 2005

The appellant appeared in person
Counsel for the Respondent:	A Markus, a solicitor
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 August 2005
Date of Judgment:	11 August 2005