SZHAO v Minister for Immigration and Citizenship

[2008] FCA 325

FEDERAL COURT OF AUSTRALIA

SZHAO v Minister for Immigration and Citizenship [2008] FCA 325

SZHAO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2298 OF 2007

GRAHAM J
27 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2298 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHAO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	27 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent Minister’s costs fixed in the sum of $2000.

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 2298 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHAO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	27 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant was born in Sichuan in the People’s Republic of China on 28 December 1960.  She obtained a passport in the People’s Republic of China on 7 April 2003 and an Australian temporary business visa on 15 October 2004.  She arrived in Australia on 30 October 2004. 

2. On 29 November 2004 she applied for a Protection (Class XA) visa.  On 19 February 2005 the Minister’s delegate refused the appellant’s application.

3. On 18 March 2005 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister’s delegate’s decision.  On 18 April 2005 a hearing invitation was extended to the appellant.  The letter from the Tribunal to the appellant indicated that the Tribunal had considered the material before it in relation to the appellant’s application but was unable to make a decision in the appellant’s favour on that information alone.  The letter continued:

   ‘Hearing of the Tribunal

   We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.  You can also ask the Tribunal to obtain oral evidence from another person or persons.’

4. The appointed date was 2 June 2005.  The appellant appeared at a Tribunal hearing on that day and her matter occupied about one and a half hours.  On 8 June 2005, or thereabouts, a letter was sent to the Refugee Review Tribunal by the appellant which was interpreted by an authorised interpreter into the English language on 8 June 2005.

5. On 9 June 2005 a letter was sent to the appellant drawing the appellant’s attention to certain information derived from the letter to which reference was made.  The appellant was invited to comment on that information.  The letter observed:

   ‘This information is relevant because this information may support conclusions on the part of the Tribunal that you are not, as you claimed, a “determined follower” of Falun Gong and that your evidence is in general not reliable.’

6. On or about 5 July 2005 the appellant would appear to have responded in a letter dated 30 June 2005. 

7. On 6 July 2005 the Tribunal decided the application for review adversely to the appellant.  That decision was handed down on 28 July 2005.  On 23 March 2007 it was quashed by orders made by a Federal Magistrate who ordered the issue of writs of certiorari and mandamus, the latter requiring the Tribunal to reconsider and determine the appellant’s application for review of 18 March 2005 according to law.

8. On 12 April 2007 the Tribunal wrote to the appellant inviting the provision of additional information and comments and, on 19 April 2007, a further invitation was extended to the appellant to attend a hearing before the Tribunal, on this occasion, on 17 May 2007.  The appellant attended a hearing on that day which occupied about one and a quarter hours. 

9. On 12 June 2007 the Tribunal constituted by a different Tribunal member decided that the appellant was not entitled to a protection visa.  It affirmed the decision of the Minister’s delegate not to grant the appellant a Protection (Class XA) visa.  That decision dated 12 June 2007 was handed down on 5 July 2007. 

10. On 5 August 2007, the appellant applied to the Federal Magistrates Court for review of the Tribunal’s second decision.  The grounds specified in the application were as follows:

    ‘1.       Procedures that were required by the Migration Regulations to be observed in connection with the making of the decision were not observed.

    2. The decision involved an important exercise of the power conferred by the Migration Act and Regulation.

    3.        There was no evidence or the other materials to justify the making of the decision.’

11. On 5 November 2007 the application came before the Federal Magistrates Court when, following a hearing, the learned Federal Magistrate ordered that the application be dismissed and that the applicant pay the costs of the respondent Minister fixed in the sum of $3,000.00.

12. On 20 November 2007 the appellant filed a Notice of Appeal in this Court appealing from the whole of the judgment of the learned Federal Magistrate of 5 November 2007.  The grounds of appeal specified in the Notice of Appeal were:

    ‘1.       The Refugee Review Tribunal failed to consider the relevant information in my country for making the decision about my protection visa.

    2.        The Refugee Review Tribunal does not fully consider the danger I would face if I returned to China.

    3.        There were no other materials to justify the making of the decision.’

13. On the hearing of the appeal no written submissions were filed on behalf of the appellant.  I invited the interpreter who has been assisting the Court in the interpretation of the words spoken from the English language into Mandarin and vice versa to kindly read to the appellant in Mandarin grounds 1, 2 and 3 as they were expressed in the Notice of Appeal in English.  I then invited the appellant to deal with each of the grounds seriatim. 

14. In respect of ground number 1 it was re-read to her.  When invited to say what she wanted to say in support of the ground she indicated that she had nothing to say.  A similar course was followed in respect of ground number 2.  The appellant indicated that she had nothing else to say and she indicated that, as I understood, it, she was a true Falun Gong adherent and that Falun Gong was good for her health.  In respect of ground 3, a similar course was followed and the appellant said when asked if she wanted to say anything in support of the ground that she had nothing to say.  I asked her if there was anything more that she wished to say in support of her Notice of Appeal.  She said that she did not have much to say and that she was a genuine Falun Gong practitioner to improve her health.

15. The ‘STATEMENT OF DECISION AND REASONS’ of the second Tribunal member are detailed.  They indicate that the appellant claimed to be practicing Falun Gong and to have done so since 1998.  The Tribunal said that it had considered the appellant’s claim that she only practiced privately because she was fearful of Chinese spies in Australia reporting her movements to the authorities in China.  The Tribunal accepted the appellant’s evidence that Chinese authorities may, to some extent, monitor the movement of its nationals in foreign countries.  After referring to deficiencies in the appellant’s evidence in relation to her practice of Falun Gong in Australia and in China the Tribunal did not accept that the appellant was a Falun Gong practitioner in China or Australia.

16. The Tribunal member indicated that she did not accept that the applicant was a Falun Gong practitioner and did not accept that the reason for the appellant’s dismissal from her employment was due to her practice of Falun Gong back in October 2004.  The Tribunal did not accept that the appellant had suffered serious harm in China as a result of being a Falun Gong practitioner.  The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

17. Section 65 of the Migration Act 1958 (Cth) (‘the Act’) relevantly provided:

    ‘65(1)After considering a valid application for a visa, the Minister:

    (a)       if satisfied that:

    …

    (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; …

    …

    is to grant the visa; or

    (b)       if not so satisfied, is to refuse to grant the visa.’

18. The relevant criterion for a Protection (Class XA) visa was specified in s 36(2)(a) of the Act which provided:

    ‘36(2)A criterion for a protection visa is that the applicant for the visa is:

    (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …’

19. The reference to the Refugees Convention was to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the reference to the Refugees Protocol was to the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 

20. Proceedings before the Tribunal are not adversarial but inquisitorial.  The Tribunal is not in the position of a contradictor of the case being advanced by an applicant.  A Tribunal member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair.  In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he or she wishes to advance and for the Tribunal to decide whether his or her claim has been made out.  It is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. 

21. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on.

22. It is clear from the Tribunal member’s statement of reasons that she was not satisfied that the relevant criterion for the protection visa for which the appellant applied had been satisfied.  No jurisdictional error on the part of the Tribunal has been identified by the appellant.  This is not an occasion for a merits review to be undertaken by the Court.  In the circumstances the appeal should be dismissed. 

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        12 March 2008

The Appellant appeared in person.
Solicitor for the First Respondent:	G J Johnson of DLA Phillips Fox
The Second Respondent filed a submitting appearance.
Date of Hearing:	27 February 2008
Date of Judgment:	27 February 2008