SZGYE v Minister for Immigration and Citizenship

[2007] FCA 645

FEDERAL COURT OF AUSTRALIA

SZGYE v Minister for Immigration and Citizenship [2007] FCA 645

SZGYE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 172 OF 2007

BESANKO J
4 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 172 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGYE
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.

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 172 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGYE
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 made an order dismissing the appellant’s application for constitutional writs directed to the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed the decision of a delegate of the Minister not to grant a protection visa to the appellant.

2. The appellant is a national of the People’s Republic of China and he arrived in Australia on 27 November 2004. On 22 December 2004 he 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 7 February 2004 a delegate of the Minister refused to grant a protection visa to the appellant and on 14 March 2004 the appellant applied to the Tribunal for a review of that decision.

3. The appellant attended a hearing before the Tribunal and he gave evidence through an interpreter. The appellant was questioned by the Tribunal member.

4. The appellant claimed that he was a refugee within Art 1A(2) of the Convention on two grounds. First, he claimed he was a refugee by reason of his political opinion. He claimed that he donated money to the pro-democracy movement in China in the spring of 1989 and that he joined in demonstrations in support of it. There was then a crackdown and the appellant claimed that he became scared that the police would arrest him. Nevertheless, he was issued with a passport and permitted to travel to Japan in 1990. The appellant returned to China voluntarily upon satisfying himself that he was not in danger of persecution. Secondly, the appellant claimed that he was a refugee by reason of his religion. The appellant claimed that he joined the Falun Gong movement in 1997 and that he continued to follow it until he was arrested and detained for four days in 2004. He claimed that the police raided a friend’s house whilst he and a group of people were performing Falun Gong exercises. He claimed that he was released from detention because his family sought the intercession of a communist party cadre who encouraged the police to release the defendant.

5. The Tribunal found that the appellant’s claims about supporting the student movement were “vague, unsupported and unimpressive”. The Tribunal found that the appellant clearly went to Japan for reasons other than to seek protection. The Tribunal did not accept that the appellant supported the pro-democracy movement in any significant way or to any significant level. The Tribunal said that the appellant’s ease of departure and his voluntary return from Japan without subsequent mistreatment or punishment was evidence of the appellant not having a significant political profile with the authorities in China. The Tribunal said that it concurred with the appellant’s own summary of these claims, namely, that they were no longer relevant. The Tribunal found that in the context of the appellant’s other claims, it did not accept that they were “even genuine”.

6. The Tribunal dismissed the appellant’s claims about past and ongoing support for the Falun Gong, and said that the appellant failed to provide even a basic appreciation of core Falun Gong practices and beliefs, beyond one or two much-publicised key words. The Tribunal found that the appellant’s responses to questions about the exercises were particularly unimpressive. The Tribunal said that it “concludes with much confidence” that the appellant was in no way associated with the Falun Gong and that it could find no basis for assuming that the appellant would ever be imputed to be a Falun Gong adherent. The Tribunal said that the appellant was an unreliable witness.

7. The Tribunal concluded by saying it was not satisfied that the appellant faced a real chance of “Convention-related” persecution in China, and that it was not satisfied that the appellant had a well-founded fear of Convention-related persecution in that country.

8. As I have said, the appellant sought constitutional writs against the Minister and the Tribunal but his application was dismissed by a Magistrate.

9. In his notice of appeal, the appellant raises the following grounds of appeal from the decision of the Magistrate:

   “2.The Tribunal had biased against me and did not consider my application according to s 91R of the Migration Act 1958.

   3.The Tribunal failed to carry out its statutory duty. The Tribunal did not notify me of the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application according to s 424A of the Migration Act 1958.

   4.The Tribunal failed to assess the chance of my persecution on my return to China.”

10. The Magistrate rejected the appellant’s claim that the Tribunal was biased. He referred to a finding made by the Tribunal which caused him some concern. The Tribunal found that the appellant clearly went to Japan for reasons other than to seek protection. The Magistrate said that he had difficulty in accepting that finding because his reading of the transcript did not bear out that firm view, and he said that another tribunal may well have concluded that the appellant utilised his ability to travel abroad to study in order to leave China at a time when persons involved in student activism might well find themselves the object of interest from the security forces. The Magistrate said that he was unable to find any evidence given by the appellant that would indicate that he clearly went to Japan for reasons other than to seek protection. The Magistrate said that the “concern” which he expressed did not go to a finding that the Tribunal fell into jurisdictional error. The appellant argued before the Magistrate that the finding indicated that the Tribunal was biased against the appellant. The Magistrate rejected that contention and said that it was not evidence of actual or ostensible bias. The Magistrate is not shown to have erred in that respect. The Magistrate also referred to authorities indicating the seriousness of an allegation of actual bias and the level of proof required. He said that the applicant had failed to meet the high standards required of this type of allegation. Again, the Magistrate is not shown to have erred. As to the allegation that the Tribunal did not consider the appellant’s application according to s 91R of the Act, that assertion must be rejected. The provisions of s 91R of the Act were not central to the Magistrate’s reasons, but in any event, there is no reason to think the Tribunal misunderstood the provisions of the section.

11. There are no particulars of the appellant’s assertions that the Tribunal failed to carry out its statutory duty or that it did not notify the appellant of the reason or part of the reason for affirming the decision or that it failed to consider the appellant’s application according to s 424A of the Act. The appellant asserted before the Magistrate that the Tribunal had not observed the provisions of the Migration Act in making its decision. The Magistrate noted that this ground was not particularised, but may be a reference to an alleged failure to comply with s 424A of the Act. The Magistrate said that he could see no such failure and that, in the absence of any other particulars, would not wish to speculate on what the appellant might have meant. The Magistrate did not err in taking that approach.

12. As to the assertion that the Tribunal failed to assess the appellant’s chances of persecution upon his return to China, there is no substance in this assertion. This was an issue which the Tribunal clearly considered and, in the result, it found that it was not satisfied that the appellant faced a real chance of Convention-related persecution in China. This ground of appeal must be rejected.

13. The appellant raised an additional challenge to the Magistrate’s reasons in his oral submissions. He submitted that the Tribunal did not give him sufficient time to prepare for the hearing which was held on 7 June 2005. This submission appears not to have been made to either the Tribunal or the Magistrate. In any event, it seems to me to be without substance. The appellant was given notice of the proposed hearing by letter dated 11 May 2005 and that would seem to be adequate notice. Furthermore, the appellant has not identified any matter which he was not able to properly present to the Tribunal.

14. All grounds of appeal fail and the appeal must be dismissed.

15. The appeal is dismissed and the appellant must pay the first respondent’s costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        4 May 2007

The Appellant appeared in  person.
Counsel for the Respondent:	Ms R Pepper
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 May 2007
Date of Judgment:	4 May 2007