SZHJJ v Minister for Immigration and Multicultural Affairs

[2006] FCA 1000

FEDERAL COURT OF AUSTRALIA

SZHJJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1000

SZHJJ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1075 OF 2006

EMMETT J
31 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1075 OF 2006

BETWEEN:

SZHJJ
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	31 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time be refused.

2.The applicant pay the first respondent’s costs in the sum of $1,100.

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 1075 OF 2006

BETWEEN:

SZHJJ
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

31 JULY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China, who arrived in Australia on 26 January 2005. On 28 February 2005, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 14 March 2005, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa. On 4 May 2005, the applicant applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of that decision. On 19 August 2005, the Tribunal affirmed the decision not to grant a protection visa. The applicant was notified of that decision on 8 September 2005.

2. On 17 October 2005, the applicant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision and Constitutional writ relief in respect of the decision.  On 4 May 2006, for reasons given on that day, the Federal Magistrates Court dismissed the application and ordered the applicant to pay the Minister’s costs in the sum of $4500. 

3. The application for extension of time to file a notice of appeal from those orders was filed in this Court on 5 June 2006.  While the application was not far out of time, it is opposed by the Minister on the basis that the appeal would have no prospect of success.  The Minister does not suggest any prejudice by reason of the short delay.

4. The Tribunal recorded that the applicant claimed that he left Hong Kong and feared to return there because he was persecuted by the secret police.  He claimed that he feared persecution in Hong Kong because of his Falun Gong activities and that he could not get protection from the harm he feared.  The Tribunal did not accept that the applicant was, or is, a Falun Gong practitioner, or that he practised, or practises, Falun Gong in Hong Kong or in Australia, as he claimed.  The Tribunal did not accept the applicant’s claim that he was beaten in 1998 and harassed by secret police for the year before he left Hong Kong to come to Australia.  Nor did the Tribunal accept that the applicant had been prevented from working in Hong Kong because of his Falun Gong activities as he claimed. The Tribunal did not accept that the applicant left Hong Kong for the reasons he claimed.  Further, the Tribunal did not accept that the applicant could not or would not return to Hong Kong because he feared persecution.  Thus, the reason for the Tribunal’s rejection of the applicant’s claims is that it did not accept him as a witness of truth. 

5. In any event, the Tribunal had regard to country information, which was discussed with the applicant at the hearing.  The Tribunal did not consider that that information indicated that there was a crackdown on Falun Gong practitioners in Hong Kong in the same way as there was in mainland China. The country information did not support the applicant’s claims that secret police were sent to Hong Kong in 1998 to seize, detain and ill-treat Falun Gong practitioners.  The Tribunal did not consider that the country information supported the applicant’s claims that he was harassed by secret police every night during 2004 because he was a Falun Gong practitioner and had to leave Hong Kong to escape from that harassment. 

6. The Tribunal accepted that the applicant was able to demonstrate a set of exercises that he learned as Falun Gong exercises. However the Tribunal considered that, if the applicant were a genuine Falun Gong practitioner, and had been such a practitioner from 1996, he would have been able to name the main Falun Gong exercises for the Tribunal and would know the Falun Gong symbol or emblem. However, the Tribunal found that the applicant could make no attempt to do those things. 

7. In the light of the country information put to the applicant, the Tribunal found that the applicant’s claims about his Falun Gong practice and his treatment by secret police in Hong Kong, including his claim that he could not work in Hong Kong because of his Falun Gong activities and treatment, were not genuine and were invented by the applicant to assist his application for a protection visa.  The Tribunal considered that there was no plausible evidence before it that the applicant has suffered, or will suffer, persecution for reasons under the Convention and Protocol relating to the Status of Refugees (‘the Convention’) from members of the secret police or anyone else in Hong Kong, either now or in the reasonably foreseeable future if he returns there. 

8. The grounds of the applicant’s complaint to the Federal Magistrates Court were as follows:

   ‘(1)RRT was subjectively seeking reasons to decide against the applicant rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant claim of a well founded fear of persecution and there is a real chance he will be persecuted;

   (2)RRT using so-called country information against the applicant rather than looking at the whole fact of the application fairly to make its judgment.  RRT also did not fully disclose the full detail of the country information that they used to assess the applicant application.’

9. In its reasons, the Federal Magistrates Court observed that, on 22 November 2005 and again on 11 April 2006, the applicant was ordered to file and serve an amended application setting out complete particulars of each ground of judicial review raised in the application.  That was to be done by 17 March 2006, when any additional affidavits to be relied upon by the applicant were also to be filed.  The applicant was also directed to file and serve written submissions 14 days before the hearing.  The applicant failed to comply with all of those directions.  The primary judge also noted that the applicant had access to the Court’s Legal Advice Scheme and his Honour was therefore satisfied that the applicant had been afforded an opportunity to receive legal advice concerning compliance with the directions to which I have just referred. 

10. The primary judge treated the first ground of complaint, by implication, as an allegation of bias on the part of the Tribunal, in that it did not give proper consideration to all the evidence before it and was looking for reasons to decide against the applicant.  The applicant put nothing to the Federal Magistrates Court to establish any of the relevant elements required to make out a case of bias or apprehended bias.  The primary judge referred to the authorities and stated the principles applicable to such a contention.  There is no error in his Honour’s statement of the principles.  His Honour concluded that it is a proper function of the Tribunal to make findings of fact, including findings on credibility.  His Honour considered that that is, in fact, what the Tribunal did, and that the finding made by the Tribunal does not in any way suggest bias on the part of the Tribunal.  The primary judge considered the second ground on the basis that it might also by implication be an allegation of bias or apprehended bias and rejected that for the same reasons.

11. His Honour accepted that the first ground of complaint could also be said to assert a failure on the part of the Tribunal to take into account relevant considerations.  However, the applicant provided no particulars of the complaint, if indeed that was the intended complaint.  His Honour considered the Tribunal looked at all of the applicant's claims as put by him.  Therefore there was no substance in the ground. 

12. To the extent that the second ground is a complaint that the Tribunal did not adequately weigh up the circumstances presented by the applicant, as against the country information, his Honour considered that that was a matter for the Tribunal and it was the function of the Tribunal to make relevant findings of fact on the basis of the material before it.  His Honour considered that, on the material before him, the findings made by the Tribunal, including findings on credibility, were open to the Tribunal and the Tribunal gave adequate reasons for its findings.

13. The second aspect of the second ground is that the Tribunal did not disclose fully the detail of the country information that it used to assess the application. Under s 422B of the Act, Division 4 of Part 7 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that Division. The only entitlement under Division 4 to be provided with information arises under s 424A, which sets out the Tribunal’s obligations to give an applicant an opportunity to deal with certain information.

14. The primary judge referred to two sets of country information upon which the Tribunal relied in making its decision.  The first was country information to which the Tribunal actually referred, which was clearly not information about the applicant or another person, and therefore, by the operation of s 424A(3), was not within s 424A.  The second set of information relied on by the Tribunal may have been country information that was also before the delegate.  The Tribunal found that that information was in similar terms to the other independent information to which it had regard in the making of its decision.  The primary judge concluded that that information was also within s 424A(3) and, therefore, that there was no requirement on the part of the Tribunal to give the applicant written notice of the information. 

15. In any event, the primary judge concluded that, apart from s 422B, there was no breach of any common law obligation to afford procedural fairness in the way in which the Tribunal dealt with the independent country information. His Honour referred to the reasons of the Tribunal, which demonstrated that the Tribunal clearly discussed the relevant parts of the available country information with the applicant at the hearing conducted by it. The applicant was given an opportunity to provide a response to that information.

16. The Tribunal’s reasons indicate that it told the applicant that independent country information confirmed that Falun Gong practitioners were not persecuted in the period in which the applicant claimed to have been persecuted.  The Tribunal read to the applicant certain of the independent country information.  The Tribunal told the applicant during the hearing that the independent information caused the Tribunal to think that the applicant was not telling the truth about what had happened to him in Hong Kong.

17. In all of the circumstances, the primary judge concluded that there had been no denial of the common law requirement of procedural fairness, even if s 422B did not apply. His Honour concluded, therefore, that the applicant’s complaints revealed no jurisdictional error on the part of the Tribunal. Nor was his Honour able to see any such error in the Tribunal’s decision.

18. In the draft notice of appeal attached to the applicant’s application for an extension of time the only ground stated is as follows:

    ‘His Honour erred in failing to recognise the principle of non-refoulement contained in the Article 33 of the 1951 Convention relating to the status of refugees and failing to find the RRT had erred in also failing to apply this principle.’

    That was not a ground before the Federal Magistrates Court and the grounds relied upon before the Federal Magistrates Court are not mentioned in the draft notice of appeal. 

19. Article 33 of the Convention imposes an obligation on the signatories to the Convention not to expel a person who is determined to be a refugee within Article 1A(2).  The obligation is not to expel to a territory in which there is a threat to the life or freedom of the refugee for a Convention reason.  However, Article 33 is predicated upon the assumption that the person to be expelled is a refugee within the meaning of the definition.  Article 33 can have no application unless there is such a finding. As I have indicated, the Tribunal concluded that the applicant was not a refugee within the meaning of the Convention.

20. Insofar as the ground assumes that there should have been a finding by the Tribunal that the applicant was a refugee, that question has already been disposed of in dealing with the grounds raised before the Federal Magistrates Court.  Insofar as the applicant seeks impermissible merits review of the decision of the Tribunal, it is a ground that has no substance at all.  If the notice of appeal or an examination of the reasons of the Tribunal or the Federal Magistrates Court disclosed at least an arguable ground upon which the appeal might succeed, there may be a basis for extending time to appeal by a matter of days.  However, for the reasons I have indicated above there do not appear to be any prospects at all that an appeal could succeed.

21. In circumstances where a notice of appeal was not filed within the time limited and there was no appearance by the applicant today on the hearing of the application to explain the delay, albeit a short delay, I consider that the application should be refused.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        3 August 2006

The Applicant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	31 July 2006
Date of Judgment:	31 July 2006