SZGVW v Minister for Immigration and Citizenship

[2007] FCA 675

FEDERAL COURT OF AUSTRALIA

SZGVW v Minister for Immigration and Citizenship [2007] FCA 675

SZGVW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 48 OF 2007

BESANKO J
4 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 48 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	4 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

3.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

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 48 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGVW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	4 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate. The Magistrate dismissed an application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China. She arrived in Australia on 2 December 2004 and, on 7 January 2005, she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”). On 21 February 2005 a delegate of the Minister refused to grant a protection visa to the appellant and, on 18 March 2005, the appellant applied to the Tribunal for a review of that decision.

3. The appellant gave evidence before the Tribunal. She said that she was born in Shenyang City, Liaoning Province in China. She said that she had become a Falun Gong practitioner under the influence of her parents. Her parents participated in protests against the Chinese Government when Falun Gong was banned and, as a result, they were arrested and detained for 15 days. The appellant claimed that she was also detained for six months during which time she was beaten with an electric rod, denied sleep and forced to sit on cement to study documents. She claimed that this treatment caused her to suffer from arthritis. The appellant said that once she was released, she decided to go overseas. She spent a lot of time collecting the money to travel overseas and she had to sell a house.

4. The Tribunal found that the appellant’s evidence at the hearing was unsatisfactory and contradictory. The Tribunal member set out the details of the appellant’s evidence and the way in which it was inconsistent. It is not necessary for me to set out the details. The Tribunal member asked the appellant a number of questions about her practice of Falun Gong. He said that her knowledge of Falun Gong was superficial. He said the following:

   “I would expect that a person willing for a belief to suffer six months of imprisonment and torture to leave behind her son and country would have been able to tell me a lot more about that belief.”

5. The Tribunal member found that the appellant was not a practitioner of Falun Gong. He said that it followed that he did not accept that she was arrested, tried or convicted and sentenced to a period of re-education by reason of an affiliation with Falun Gong. He did not accept that she distributed Falun Gong pamphlets or came to the adverse attention of the Public Security Bureau for doing so. He did not accept that she had suffered harm amounting to persecution in the past for the reason that she practised Falun Gong or for any other reason and he did not accept that there was a real chance of her suffering harm amounting to persecution for that reason should she return to China in the foreseeable future. The Tribunal member concluded that the appellant did not have a well-founded fear of persecution in China for the reason of her political opinion, real or imputed, or membership of a particular social group or for any other Convention reason.

6. The Magistrate was unable to discern a jurisdictional error in the approach of the Tribunal member. I will refer to his reasons in the context of the grounds of appeal to this Court.

7. On the appeal, the appellant claims that the order of the Magistrate should be set aside on the following grounds:

   “1.      The Tribunal failed to give natural justice.

   2.The applicant was denied procedural fairness in connection with the making of the decision.

   3.The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.”

8. The Magistrate considered whether the Tribunal had failed to provide natural justice or procedural fairness to the appellant. He said that by reason of s 422B, the question turned on the provisions of the Act. He considered whether there had been a breach of s 425 of the Act. He noted that the Tribunal wrote to the appellant and invited her to attend the hearing, which she did. The appellant gave oral evidence with the assistance of an interpreter in the Mandarin language. He noted that there was no claim that the interpreter at the hearing was not capable of interpreting the proceedings to the appellant, or that the appellant was not able to give evidence, or that she was not able to give evidence properly in some way or another. The Magistrate concluded that there had been no failure by the Tribunal to provide natural justice or procedural fairness. The appellant has not identified any error in the reasoning of the Magistrate.

9. The Magistrate considered the appellant’s claim that the making of the decision was an improper exercise of the power given to the Tribunal. The Magistrate proceeded on the basis that by this ground the appellant intended to allege that the Tribunal fell into some form of jurisdictional error. The Magistrate said that he was unable to identify any jurisdictional error and noted that the claim of jurisdictional error had not been particularised. The Magistrate noted that there had been no breach of s 424A of the Act and he said:

   “It is clear from the Tribunal’s decision that the Tribunal was not satisfied that the applicant met the criteria for a visa based on the view that the Tribunal took of the credibility of the applicant’s evidence at the Tribunal hearing.”

10. He also referred to the fact that the information provided to the Tribunal by the appellant for the purpose of the hearing came within the exception provided for in s 424A(3)(b) of the Act. He concluded that there had been no breach of s 424A of the Act. Again, the appellant has not identified any error in the reasoning of the Magistrate.

11. I reject the appellant’s grounds of appeal and, in those circumstances, the appeal must be dismissed. The appellant must pay the first respondent’s costs of the appeal. I order that:

    1.        The appeal be dismissed.

    2.        The appellant pay the first respondent’s costs of the appeal.

    3.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

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

Associate:

Dated:        11 May 2007

The Appellant appeared in person
Counsel for the First Respondent:	Ms T Quinn
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	4 May 2007
Date of Judgment:	4 May 2007