SZGSC v Minister for Immigration and Citizenship

[2007] FCA 1368

FEDERAL COURT OF AUSTRALIA

SZGSC v Minister for Immigration & Citizenship [2007] FCA 1368

SZGSC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 712 OF 2007

DOWSETT J
2 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 712 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGSC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	2 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the applicant pay the first respondent’s costs of the appeal.

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 712 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGSC
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	2 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a federal magistrate affirming a decision of the Refugee Review Tribunal (the “Tribunal”).  By that decision the Tribunal affirmed an earlier decision of the delegate of the Minister not to grant a protection visa to the applicant.  An earlier decision to similar effect by the Tribunal was quashed by the Federal Magistrates Court and remitted for further consideration.  It is clear from the decision with which I am presently concerned that at the second hearing the Tribunal had reference to material supplied at the first hearing and also to other information and material provided at the second hearing.

2. The applicant’s claim to be a person to whom Australia owes protection obligations was based upon his assertion that in China in 2003 and 2004 he was engaged in the formation of an illegal labour organisation.  He claims to have been arrested and detained for that reason, to have been physically tortured and forced to confess to alleged crimes, and that he was thereafter not permitted to work in construction work in Shenzhen City.  He said that he had been forced to report regularly to police, that he was refused a passport in April 2004 and that he left China in November with the help of a friend after bribing an official to obtain a passport.  The Tribunal rejected most of these assertions.  On that basis the original decision was affirmed. 

3. The grounds of appeal allege error of law by the magistrate in finding that the Tribunal acted properly in its determination of this matter.  The magistrate dealt in detail with the applicant’s concerns about the Tribunal’s decision.  The applicant has not sought to identify any error in the magistrate’s decision, save to challenge the outcome.  To the extent that there are any grounds in the notice of appeal, they simply reflect criticisms made of the Tribunal’s decision.  The assertion seems to be that because the magistrate did not upset the decision he must have erred.

4. In the notice of appeal the applicant gives three particulars of his grounds.  They are:

   ‘1.The Tribunal failed to consider my application, properly and fairly;

   2.The Tribunal failed to comply with its obligations under section 424A(1) of the Act;

   3.The Tribunal exceeds its powers and thus commits a jurisdictional error because it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power.’

5. Before me six criticisms were made. The first was that the Tribunal failed to comply with the requirements of s 420 of the Migration Act 1958 (Cth) (the “Act”). That section requires the Tribunal to carry out its function in a fair, honest and genuine way. No particular criticism of the Tribunal’s approach was attached to that submission. It is probable that the applicant meant to refer to certain other criticisms, also of a fairly general nature, which appeared later in his submissions. It is sufficient to say that the complaint concerning s 420 is completely unparticularized. I see nothing in the reasons of the Tribunal or otherwise to support it. As I have said it may refer to certain other specific allegations, particularly that information had been ignored or overlooked, or incorrect information taken into account.

6. The second ground was that the Tribunal overlooked information concerning the applicant’s reasons for applying for a protection visa.  In particular he said that it failed to take account of his assertion that his reason for fearing persecution was the fact that he had founded an illegal labour union.  The Tribunal understood that this was his claim but rejected it, having regard to his evidence.  In particular, it thought it unlikely that such a large organization as the applicant claimed to have established would have no records.  One may wonder about the persuasiveness of this logic, but it does not demonstrate jurisdictional error.  Under this heading the applicant also complained that the Tribunal had not accepted his claim that he had bribed an official to obtain a visa to leave China.  Again, this was a matter for the Tribunal.  It does not bespeak jurisdictional error.  It is then asserted that the Tribunal simply based its decision on the first decision.  The applicant also claimed that he had not been provided with certain information to enable him to comment upon some unidentified matter.  I am unable further to describe this complaint.  Whatever it may have been, it is clear that the Tribunal considered the information which he had provided.  If the complaint is that he was not given an opportunity to answer the case against him, it is completely unparticularized and inconsistent with the Tribunal’s reasons, in particular its account of the way in which the second hearing was conducted.

7. Fourthly, the applicant claimed a breach of s 424A(1).  His complaint was that he was not given a copy of the Tribunal’s reasons for rejecting his application so that he could comment upon them prior to their delivery.  Clearly enough s 424A(1) does not apply in that way.  In particular, it does not require the prior ventilation of the Tribunal’s ultimate reasons for its decision.

8. Fifthly, it was said that the applicant was not given a fair opportunity to argue about his application, and that the Tribunal ignored evidence given at the second hearing. Counsel for the Minister rather generously suggested that this may have been an attempt to invoke the provisions of s 425 of the Act. However I see no reason to believe that the applicant was denied anything to which he was entitled.

9. Finally, it was submitted that the Tribunal did not understand the situation in China.  The applicant again referred to the unofficial nature of the union and to independent information concerning the persecution of labour in China.  Clearly, the Tribunal disposed of the matter upon the basis that it was not satisfied that the applicant was involved in the organisation of labour in China. 

10. There is no reason to infer that the Tribunal simply acted upon its earlier decision.  The care with which the information given at the second hearing was recorded demonstrates as much.  It may be that there is some similarity in the language used in the “conclusions” section of each of the two decisions, and it may be that the wording and organisation of the second decision was to some extent influenced by the Tribunal’s reading of the first decision.  However I see no reason to infer that the second hearing was not conducted conscientiously or that the decision was not based upon the whole of the evidence.

11. The appeal must be dismissed.  I order the applicant to pay the first respondent’s costs of the appeal. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        29 August 2007

Counsel for the Applicant:	The applicant appeared in person
Counsel for the First Respondent:	Mr J Potts
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The second respondent did not appear
Date of Hearing:	2 August 2007
Date of Judgment:	2 August 2007