SZHNM v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal

[2006] FCA 1578

FEDERAL COURT OF AUSTRALIA

SZHNM v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal [2006] FCA 1578

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZHNM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1490 OF 2006

TRACEY J
14 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1490 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNM
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	14 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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 1490 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNM
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	14 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate, given on 25 July 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which was made on 21 September 2005, and handed down on 13 October 2005.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse the grant of a protection visa to the appellant.

2. The appellant is a citizen of the Peoples Republic of China (‘China’) who arrived in Australia on 27 February 2005. Before the Tribunal the appellant claimed to have a well founded fear of persecution because he was a Falun Gong practitioner.  The appellant claimed that he became addicted to Falun Gong in 1998 when his neighbour told him about the health benefits.  When Falun Gong was banned he hid his participation, but he went to Beijing and joined demonstrations. In 2000, he claimed that he was questioned and detained by police for 1 month, suffering physically and mentally.  The appellant stated that he was released upon payment of a bribe but was arrested again in June 2000 and was detained for 10-20 days and released after paying another bribe.  The appellant asserted that, in mid 2004, the police came to his home, took his computer and informed his company of his illegal practice.  The appellant claimed that he then paid a large sum of money to obtain a passport, and, with the assistance of a friend, he obtained his visa.  

3. The Tribunal found that the appellant’s knowledge of facts relating to Falun Gong was incommensurate with his claim that he was a long-standing Falun Gong practitioner.  It held that the appellant’s answers to its questions were vague and that the appellant was unable to provide any details of his claims. This raised credibility concerns for the Tribunal.  The Tribunal did not accept that the appellant was a Falun Gong practitioner, that he was involved in asking the Chinese government to provide what he had called a “sufficient political and legal system” in China or that he had political opinions different from the Chinese authorities.  The Tribunal made an adverse credibility finding and did not accept that the appellant had suffered any harm.  It was satisfied that the appellant had fabricated his claims.

4. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates’ Court. The appellant relied on two grounds. The first was that the Tribunal had failed to carry out its statutory duty. The particulars given were that:

   (a)the only information before the Tribunal was the first respondent’s file;

   (b)the Tribunal was required to provide particulars under s 424A of the Migration Act 1958 (Cth) (‘The Act’) and explain why it was relevant and provide an opportunity for comment in writing; and

   (c)the term ‘information’ extended to the appellant’s application for a visa to the delegate of the Minister.

   The second ground was that the Tribunal did not believe that the appellant was a Falun Gong member and this disbelief was based on the member’s assumption and not on actual evidence or materials.

5. The Federal Magistrate held that the decision was unaffected by jurisdictional error and was, therefore, a privative clause decision.  His Honour held that the Tribunal did not rely on any information provided by the appellant because the decision was based upon its dissatisfaction with the appellant’s answers to its questions.  The Tribunal did not make its decision based on assumption but based its conclusions as to the appellant’s lack of knowledge of facts pertaining to Falun Gong.  The Tribunal’s findings and reasons referred specifically to the appellant’s evidence given to the Tribunal and it had formed an adverse opinion of the appellant’s credibility having questioned him at the hearing. The Tribunal  did not believe the appellant’s evidence.  The Federal Magistrate was unable to discern any other error after a thorough reading of the decision.

6. The notice of appeal to this Court raised the following grounds:

   (a)the Tribunal failed to carry out its statutory duty and did not consider the appellant’s application according to sections 424A and 91R of the Act;

   (b)the Tribunal was biased against the appellant; and

   (c)the Federal Magistrates’ Court failed to make the “right judgment” because it had fallen into the above mentioned jurisdictional errors.

   No particulars of these grounds were provided.  The bias ground had not been advanced before the Federal Magistrate.

7. The appellant appeared in person. He had the assistance of an interpreter. He had prepared a written statement which elaborated on the grounds appearing in his notice of appeal. He said that he had had the assistance of a legal aid lawyer in preparing the document. The submissions involved a restatement of contentions relied on in the Federal Magistrates’ Court. In addition there was a claim that the Tribunal had not taken into account information provided by the appellant and the bias allegation. When asked, the appellant was unable to identify any information which he had provided, but which had not been considered by the Tribunal. The bias allegation amounted to no more than a complaint that the Tribunal had rejected his claim to be a Falun Gong practitioner.

8. No error is shown in the learned Magistrate’s decision. The appeal will be dismissed with costs. The costs will be fixed at $1450.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        14 November 2006

Counsel for the Applicant:	Litigant in Person
Counsel for the Respondent:	Ms E Palmer
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 November 2006
Date of Judgment:	14 November 2006