SZHBV v Minister for Immigration and Citizenship

[2007] FCA 1856

FEDERAL COURT OF AUSTRALIA

SZHBV v Minister for Immigration & Citizenship [2007] FCA 1856

SZHBV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1400 OF 2007

JESSUP J
9 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1400 OF 2007

BETWEEN:

SZHBV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	9 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the respondent Minister fixed in the sum of $1,400. 

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	NSD1400 OF 2007

BETWEEN:

SZHBV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	9 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the court is an appeal from a judgment of the Federal Magistrates Court of Australia, given on 28 June 2007, by which applications for writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal (“the Tribunal”), affirming an earlier decision of a delegate of the respondent Minister to refuse the appellant’s application for a protection visa under the Migration Act 1958 (Cth) (“the Act”), were dismissed. The Tribunal made its decision on 12 July 2005 and handed it down on 2 August 2005.

2. According to the Tribunal, in the appellant’s application for a protection visa, he claimed that he had been practising Falun Gong for many years; however, he kept silent about that circumstance.  He claimed that he was a local leader of Falun Gong in the town where he resided, that he promoted the spirit of Falun Gong, and that he taught the practice to his relatives and friends.  He claimed that he escaped China for personal safety reasons because Falun Gong was illegal there, and if he were to return he “would be one of those who would hurl oneself willingly into the net to get punished.”

3. According to the decision of the Tribunal, when the appellant appeared before it at a hearing on 11 July 2005, he claimed that he had been the secretary of the local communist party and produced a booklet containing his own photograph as evidence of that fact.  He claimed that the authorities wanted him to report the names of Falun Gong practitioners, but he refused to do so.  As a result of the appellant’s responses to questions asked of him by the Tribunal, the Tribunal came to the conclusion that the appellant knew very little about Falun Gong.  The following passages appear in the Tribunal’s reasons:

   It is clear from the above that the applicant’s knowledge of Falun Gong was very limited.  It was astonishing that he did not even know how many exercises there were.  Despite being given opportunities to clarify, some of his answers remained very vague and at various stages evasive.  In light of these comments and in consideration of the evidence as a whole, the Tribunal rejects the applicant’s claim that he was ever a Falun Gong practitioner or that he was ever involved secretly or openly in any Falun Gong activities in either China or in Australia.  The Tribunal is satisfied that the applicant has fabricated these claims reflecting adversely on his credibility.

   At the beginning of the hearing, the applicant showed the Tribunal a booklet (Folios 17-18) where at page 17, it is noted that the applicant was a secretary in the Communist Party.  Given the credibility issues, the Tribunal has concerns about the accuracy of the information contained in the booklet but, for the purposes of the Decision, the Tribunal accepts as being plausible that the applicant was a secretary of the Party.  However, given the applicant’s lack of knowledge about Falun Gong, and looking at the evidence cumulatively, the Tribunal does not accept that he was asked in that role to report on or monitor Falun Gong activities.  It is simply incredulous that a person who virtually knows nothing about Falun Gong would be involved in monitoring and reporting on such activities.  He would not even be in a position to determine if a person was practising Falun Gong or something else.  Given the Tribunal’s the tribunal [sic] rejection of the claim that the applicant was asked to report on or monitor Falun Gong activities, it follows that the Tribunal does not accept that the applicant lost his employment in 2002 because he refused to report on or monitor Falun Gong activities, or that he opened his own business or was detained for any reason as such findings are inherently contingent upon a positive finding that the applicant was asked to report on and monitor Falun Gong activities.  In essence, the Tribunal is not satisfied that the applicant has suffered any of the claimed harm.

4. In his application for certiorari and mandamus in the Federal Magistrates Court, the applicant relied upon the following grounds:

   1.The Tribunal did not make a genuine and realistic attempt to make the decision in a bone fide manner in that:

   (a)Tribunal did not afford to the applicant the benefit of the doubt where there was no material to the contrary to what was being asserted by the applicant;

   (b)The Tribunal did not accept the applicant’s credibility as the applicant was unable to answers some interview questions about the details of the Falun Gong organization.  However, the applicant did not claims to be a Falun Gong follower.  Instead, he claimed to be a member of the Chinese Communist Party who was on duty to monitor the Falun Gong.  He claimed that he was persecuted because he refused to do that.  The Tribunal made the incorrect finding on the basis of its incorrect assumption that a government officer who was required to monitor Falun Gong must know about Falun Gong very well.

   2.The applicant claims that he used to be a police official in the local government and that his duty was to monitor Falun Gong practitioners.   Because he refused to fulfil his duty, he was persecuted by the Chinese government.  The Tribunal did not accept such claims.  The Tribunal stated that it is “incredulous” that a person who virtually knows nothing about Falun Gong would be involved in monitoring and reporting on such activities.  This finding is unreasonable and incorrect.

5. The Federal Magistrate considered each of these grounds carefully and in detail.  I have not found any error in the way that he did so.  Neither has the appellant made any attempt to demonstrate error on the part of his Honour.  The conclusion is inescapable that, on the case which the appellant put to the Federal Magistrate, the Federal Magistrate went about his task without appellable error.  The appellant supported his Notice of Appeal filed on 18 July 2007 with the same two grounds as provided support for his original application in the Federal Magistrates Court.  Those grounds made no reference to the judgment of the Federal Magistrate himself and are expressed as though this court had an original jurisdiction to review the Tribunal. 

6. It is of concern to me that the appellant told me today that he had not had the grounds in the Notice of Appeal interpreted to him, and I infer that he does not understand them or even know much about them.  Indeed, the appellant told me that he did not know why the Tribunal rejected his claim.  He spent virtually the whole part of his submissions in court today reciting matters of fact which he may or may not have put before the Tribunal, but which are of little value to this court sitting as it is as a court of appeal from the Federal Magistrates Court, and that court having as it does a supervisory rather than an appellate jurisdiction with respect to the Tribunal.

7. The appellant told me that while in China he was a Communist Party secretary and helped local practitioners of Falun Gong set up their program.  Although, for obvious reasons, he did this covertly, he was reported by someone and placed in detention.  He remained in detention for about a month, after which he arranged for a bribe to be paid to the head of the local authority and to a local BSP member, as he described it.  According to what he told me, the effect of that bribe was two-fold:  first, he secured his release from detention; and, secondly, he secured the approval of those two officials for his application for a passport which facilitated his journey to Australia.  He told me that he came here originally on a three-month visa to visit his son who, along with other members of his immediate family, is resident in Australia. 

8. When the appellant made submissions to me in reply today, for the first time he mentioned that the Tribunal had cut him off when he attempted to make submissions additional to those which had been contained in his original application and to those which he had made up to that point at the hearing in the Tribunal.  He submitted that all the decisions made so far, by which I take it he meant the decision of the Tribunal and the decision of the Federal Magistrate, were made on the basis of his original application.  I rather gathered that he wanted to be heard to complain that everything which might have been put in support of that application had not been put to the Tribunal because he had not been given an opportunity to do so.

9. Leaving aside for the moment the obvious surprise which I experienced at a complaint of this nature being mentioned for the first time in reply in this court, not having been mentioned to the Magistrate, at least so far as his Honour’s reasons disclose, that complaint essentially involves an issue of fact which might well have been, but which was not, apparently, put before the Federal Magistrate.  That was the appropriate place for such a fact to be proved and the person by whom it was required to be proved was, of course, the appellant.  As is apparent from the appellant’s grounds in the Federal Magistrates Court, which I have previously read, the appellant made no such complaint in support of his application for certiorari and mandamus, and he made no reference to it in his grounds of appeal in this court. 

10. Notwithstanding those omissions, I take the view that the general thrust of the factual propositions put to me today by the appellant, which are, he made it clear, the same things that he would have put to the Tribunal had he been given a chance, is substantially in line with the broad features of the case which he did, in fact, run before the Tribunal.  One way or another, that case was tied up with what the appellant says was his refusal to co-operate with the local party or the authorities in their endeavour to have him report on and to monitor Falun Gong practitioners.  As the appellant put it in his Notice of Appeal, he did not claim to be a Falun Gong follower, but claimed to be a member of the Chinese Communist Party who was on duty to monitor Falun Gong.  He claimed that he was persecuted because he refused to do that.  As a matter of substance, as distinct from form, I think that claims of that kind are broadly harmonious with the way in which the Tribunal itself perceived the appellant’s case.

11. I propose to dismiss the appeal, and I do so because the appellant has not demonstrated that the Federal Magistrate was in error in the way that he disposed of the appellant’s application for certiorari and mandamus.

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

Associate:

Dated:        27 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr M Snell
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 November 2007
Date of Judgment:	9 November 2007