SZHJE v Minister for Immigration and Citizenship

[2007] FCA 904

FEDERAL COURT OF AUSTRALIA

SZHJE v Minister for Immigration and Citizenship [2007] FCA 904

SZHJE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD525 OF 2007

COLLIER J
13 JUNE 2007
BRISBANE (VIDEO TO SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD525 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHJE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	13 JUNE 2007
WHERE MADE:	BRISBANE (VIDEO TO SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent to be taxed, if not otherwise agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD525 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHJE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	13 JUNE 2007
PLACE:	BRISBANE (VIDEO TO SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Emmett FM of 14 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 29 August 2005 and handed down on 20 September 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

   Background and the appellant’s claim

2. The appellant is a citizen of the People’s Republic of China (“PRC”) who arrived in Australia on 13 February 2005. On 21 February 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 9 March 2005. On 11 April 2005 the appellant applied to the Tribunal for a review of that decision.

3. The appellant’s claim is that he is a Falun Gong practitioner and faces persecution because of his practice. He states he was introduced to Falun Gong by a friend and that the practice of Falun Gong had cured health problems including rheumarthritis and headaches that he had developed from working in a factory in the PRC. He claimed that he has since introduced Falun Gong to other friends with whom he often meets and communicates regarding their practice. The appellant further claimed that after the ban in 1999 many Falun Gong practitioners were punished, with the appellant being detained in a detention centre where he was tortured and forced to give up Falun Gong. The appellant states that he signed a confession letter in order to protect his family. The appellant claimed that afterwards the police would frequently visit him at work and home, disturbing his life.

   Proceedings before the Tribunal

4. The appellant appeared before the Tribunal and gave oral evidence assisted by a Mandarin interpreter on 25 July 2005. The appellant stated that the claims in his protection visa application were true and correct and at hearing the Tribunal tested the appellant on his knowledge and practice of Falun Gong.

5. The Tribunal did not accept the appellant was a genuine Falun Gong practitioner. It found that:

   While it was clear that the Applicant had attempted to learn something about Falun Gong in preparation for the hearing he was unable to perform the exercise which would be second nature to him if he was a genuine Falun Gong practitioner. The Applicant said that he was too nervous, that he had a headache and that his brain was not functioning but he only raised these concerns after it had become apparent that he was unable to perform the Falun Gong exercises and I do not accept that these excuses were genuine.

6. As the appellant was not a Falun Gong practitioner, the Tribunal did not accept the rest of his claims of detention and torture. Further, its finding was reinforced by the fact the appellant had obtained a passport in his true identity and did not accept the explanation that the appellant had obtained the passport through bribery and contacts. The Tribunal did not accept the appellant had come to the adverse attention of the authorities. As it did not accept he was a genuine Falun Gong practitioner, the Tribunal found: “I do not accept that, if he returns to China, he will wish to practise Falun Gong but will be prevented from doing so by the Chinese authorities”.

   Decision of the Federal Magistrate

7. Before the Federal Magistrate, the appellant relied on an amended application filed on 22 February 2006 which raised seven grounds of appeal:

   1.The Tribunal failed to consider the claims.

   2.The Tribunal did not believe the appellant was a Falun Gong member without evidence.

   3.The Tribunal was biased.

   4.The Tribunal did not observe the Migration Act 1958 (Cth) (“the Act”) properly.

   5.The Tribunal did not accept the appellant was a Falun Gong practitioner although the appellant had learnt about Falun Gong.

   6.The Tribunal was biased by not accepting the appellant obtained his passport through bribery and contacts and this finding was made without evidence.

   7.The Tribunal failed to assess the appellant’s chance of persecution because of his involvement in Falun Gong.

8. In rejecting all of the grounds of appeal, in addition to finding a lack of particularisation in respect of many of the grounds, her Honour found that:

   ·it was quite plain that the Tribunal had considered the appellant’s claims, explored with the appellant its concerns about his claims and evidence and consequently the findings and conclusions of the Tribunal were findings and conclusions open to it and for which it gave reasons

   ·the Tribunal had referred to independent information about the practice of Falon Gong and had put to the appellant its concerns about he appellant’s knowledge of Falon Gong

   ·the Tribunal decision does not disclose any suggestion of bias or that the Tribunal approached its task without an open mind

   ·the Tribunal had complied with its statutory obligations in the conduct of its review and in making its decision

   ·the Tribunal did assess that applicant’s chance of persecution in accordance with the claims made and the finings of the Tribunal in this regard were open to it.

   On appeal

9. In the notice of appeal filed in this Court on 29 March 2007, the appellant raised three grounds of appeal: that the Tribunal failed to consider the application according to s 91R of the Act due to bias and the decision was made based on assumptions not evidence; that the Tribunal failed to carry out its statutory duty in that it did not notify the appellant of the reasons for affirming the decision; and that the Federal Magistrate did not consider the application with all the information. The affidavit annexed to that document indicated the appellant sought to contend the Tribunal failed to consider s 424A of the Act.

10. This matter first came on for hearing before me on 22 May 2007. At that hearing, the respondent filed an affidavit attaching a copy of the reasons for decision of Emmett FM, wherein the deponent, a solicitor acting for the first respondent, swore that the reasons for decision of the learned Federal Magistrate were received by facsimile transmission dated 7 May 2007. A copy of the decision of her Honour was not included in the appeal book because of the relative proximity of the time the reasons were published to the hearing on 22 May 2007. I accepted the affidavit for filing in Court. Counsel for the respondent said in Court that a copy of the affidavit attaching her Honour’s reasons for decision were couriered to the appellant on 21 May 2007.

11. At the 22 May 2007 hearing when I asked the appellant to explain his ground of appeal that the Federal Magistrate “did not consider the application with all the information”, the appellant said that he did not understand the reasons of the Federal Magistrate in dismissing his application.

12. The decision of the Federal Magistrate was delivered on 14 March 2007 at which time her Honour indicated that the reasons for her decision would be given at a later date. I understand that reasons for her Honour’s decision were given on 7 May 2007.

13. Under the Federal Court Rules an appeal must be filed within 21 days. Through the interpreter, the appellant evinced some confusion as to whether he had received in the post the reasons for decision of Emmett FM.

14. In light of the facts that barely two weeks had passed from the apparent date on which the reasons of Emmett FM became available, and that the appellant was self-represented and (it appeared) had not had an opportunity to consider whether his grounds of appeal should be amended in light of the reasons for her Honour’s decision, in the interests of justice I ordered that the hearing be adjourned for approximately two weeks to allow the appellant time to file written submissions, should he so choose, and the respondent time to reply. The hearing was subsequently relisted for today.

15. The appellant filed written submissions on 4 June 2007.

    Non appearance of the appellant today

16. The appellant has not appeared in Court today. On 22 May I indicated to the parties that I would adjourn the hearing for approximately two weeks, and I asked the parties to confirm their contact details with my associate. I understand the appellant informed my associate that the appellant’s address on the Court file, namely an address in Auburn, NSW was his correct contact address. The appellant was notified of today’s hearing by letter from the Court’s Appeals Support Officer on 22 May 2007. This letter was sent to the appellant’s address on the Court file, namely an address in Auburn NSW.

17. On 31 May 2007, the appellant filed a notice of change of address with the Court, the new address being an address in Surrey Hills. The change of address is dated 28 May 2007. It is not clear whether the appellant received the correspondence sent 22 May 2007 by the Court. However, I have before me an affidavit of Oliver Young of Blake Dawson Waldron sworn 13 June 2007 indicating that on 12 June 2007 he caused to be sent by courier to the appellant at what appears to be his new address a letter advising the appellant that the rescheduled hearing would be heard today before me at 10.15 am. I am also informed by my associate that she attempted to contact the appellant twice yesterday by telephone but that his mobile phone (the number listed on the Court file) was switched off.

18. I am not prepared to adjourn the hearing for want of appearance, and I am satisfied that all reasonable attempts have been made to notify the appellant of today’s hearing in light of the following circumstances:

    §the matter was called this morning by the Court Officer outside the Court room

    §the parties were advised at the last hearing that the matter would be again heard in approximately two weeks

    §the appellant was advised by letter sent on the day of the last hearing of the new hearing date

    §the appellant confirmed his contact details with my associate as being in Auburn, NSW

    §the first respondent has filed an affidavit indicating that the appellant was advised of today’s listing by letter couriered yesterday.

19. In view of the material before the Court, I am prepared to decide this matter on the papers.

20. The appellant’s written submissions are in summary:

    §he came to Australia for his own safety and that of his family members

    §his practice of Falun Gong is for health reasons

    §he was detained illegally and forced to sign a declaration that he would not practice Falun Gong anymore

    §he was dismissed from his employment

    §the government is corrupt and in China he can not enjoy human rights

    §some Falun Gong members are sentenced to jail and secretly killed

    §local police often came to see him and local people avoided him.

21. The appellant’s submissions, with respect, do not raise any grounds of appeal but rather restate some of his factual contentions which are not able to be reviewed by this Court.

22. The respondent had filed written submissions on 18 May 2007 and did not file any further submissions. These submissions were relied on at the hearing.

    Grounds of appeal

23. Turning to each ground of appeal:

    1.I note from the reasons for decision of the Tribunal that the Tribunal considered at length the meaning of s 91R Migration Act 1958 (Cth). As pointed out by Emmett FM below, an allegation of bias is a serious allegation to make, and requires evidence (at [27], cf SBBS v MIMIA (2002) FCAFC 361 at [43]). The appellant’s allegation of bias of the Tribunal is not particularised or supported in any way. Her Honour found that a fair reading of the Tribunal’s decision did not disclose any suggestion that the Tribunal approached its task other than with a mind open to persuasion (at [27]). Nothing before me persuades me otherwise, and accordingly in my view this ground of appeal must fail.

    2.In relation to the claim of the appellant that the decision of the Tribunal was based on assumptions not evidence, I note that Emmett FM considered the evidence before the Tribunal and found that the Tribunal referred to independent information about the practice of Falun Gong, and put to the applicant the difficulties it had about the applicant’s evidence in respect of his knowledge and practise of Falun Gong (at [25]). In the absence of particularisation of the appellant’s claim, it is not clear in what way he is seeking to contend the findings of her Honour, or in what way her Honour has erred. I see no error in the findings of Emmett FM in relation to the claim concerning the evidence underpinning the conclusions of the Tribunal. Accordingly in my view this ground of appeal fails.

    3.In relation to the claim of the appellant that the Tribunal failed to carry out its statutory duty in that it did not notify the appellant of the reasons for affirming the decision, I note that Emmett FM considered this issue below. Her Honour said as follows:

    The Tribunal complied with its statutory obligations under the statutory regime, both in the conduct of its review and in the making of its decision. In particular, the Tribunal invited the applicant to come to a hearing, in accordance with the statutory scheme. The evidence considered by the Tribunal, including the evidence about the applicant’s passport, was information given to the Tribunal by the applicant for the purposes of its review. The transcript discloses that the applicant gave his passport to the Tribunal at the hearing and, in the circumstances, the obligations of s 424A(1) of the Act were not enlivened by reason of s 424A(3)(b) of the Act which excludes from the requirements of s 424A(1) information given by an applicant to the Tribunal for the purposes of its review.

    4.Other than by broad assertion, the appellant does not particularise his claim concerning the alleged failure of the Tribunal to carry out its statutory duty. I see no error in the finding of her Honour, and in the circumstances this ground of appeal fails.

    5.The claim by the appellant that the Federal Magistrate “did not consider the application with all the information” was explained earlier in this judgment. A copy of the reasons for her Honour’s decision were sent to the respondent, and I assume also to the appellant, on 7 May 2007. In addition, a copy of those reasons annexed to an affidavit of Ms Blackman, a solicitor of Blake Dawson Waldron for the Minister, was served on the appellant at the hearing of 22 May 2007. I am satisfied that this ground of appeal has no substance.

24. As no appellable error has been identified in the reasons for decision of her Honour, the appeal is dismissed.

    THE COURT ORDERS THAT:

    1.The appeal be dismissed.

    2.The appellant pay the costs of the first respondent to be taxed, if not otherwise agreed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        13 June 2007

Counsel for the Appellant:	The appellant did not appear
Counsel for the Respondent:	F Lloyd
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	13 June 2007
Date of Judgment:	13 June 2007