SZHNN v Minister for Immigration and Citizenship

[2007] FCA 1240

FEDERAL COURT OF AUSTRALIA

SZHNN v Minister for Immigration & Citizenship [2007] FCA 1240

SZHNN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 727 OF 2007

BENNETT J
2 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 727 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	2 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s 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 727 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHNN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	2 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China.  He lodged an application for a protection visa which was refused by a Delegate of the Minister.  He filed an application for review of that decision with the Refugee Review Tribunal and has attended two Tribunal hearings.  The decision of the first Tribunal was quashed and the matter heard before a differently constituted Tribunal (‘the second Tribunal’). 

2. The appellant’s claim was that he feared persecution based on his involvement “in the corruption business” as an employee of the City Construction Bureau (‘the Bureau’) in his home city in 2004.  He claimed that he had been accused of forging documents; that he had been investigated, interrogated and threatened by the police; that his house had been searched; and that corruption officials tried to have him “kicked out” of the Bureau.  The appellant also expressed views concerning environmental protection and freedom of speech in China.  He claimed to fear persecution of an unknown kind if he returned.

3. The second Tribunal was satisfied that the appellant was a citizen of China but was not satisfied that his claims were truthful.  The second Tribunal did not regard the appellant as a reliable witness and gave detailed reasons for that conclusion.  At least one of those reasons was based upon an inconsistency between the evidence given by the appellant in the first Tribunal hearing and the second Tribunal hearing.  At the hearing before the second Tribunal, the appellant repeated the substance of his claims as made before the first Tribunal but added material.

4. The second Tribunal noted that there were some inconsistencies. The extent to which those inconsistencies formed part of the reasons for the second Tribunal’s decision is not clear. Even if it were the case that the evidence given by the appellant to the first Tribunal did not fall within s 424A(3)(b) of the Migration Act1958 (Cth) (‘the Act’) for the purposes of the second Tribunal hearing, the inconsistencies referred to by the Tribunal are not information for the purposes of s 424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]).

5. The second Tribunal found that, even if the events described by the appellant had occurred, it did not accept that this treatment amounted to “serious harm amounting to persecution” as required under the Convention.  That was because the second Tribunal said the appellant’s detention occurred in the course of a police investigation into alleged official corruption and involved the non-discriminatory enforcement of a law of general application.

6. The second Tribunal considered the appellant’s claim that he would be subject to serious harm because of his attitude towards environmental protection.  It also considered his more general claims regarding what he perceived to be China’s lack of human rights.  The second Tribunal considered whether those claims indicated that the appellant held a political opinion which would place him at risk of persecution.  The second Tribunal was not satisfied that the appellant experienced any difficulties in China because of his actual or imputed political opinions.  The second Tribunal was not satisfied that the appellant, as a member of the Communist Party or otherwise, would engage in activities or express or manifest any political opinion which could lead to his persecution.  The second Tribunal was not satisfied that the appellant had a well-founded fear of serious harm amounting to persecution for a Convention related reason, if he were to return to China.

7. The second Tribunal found that the appellant did not satisfy the criteria set out in s 36(2) of the Act.

8. The appellant applied to the Federal Magistrates Court for an order that the respondents show cause why a remedy should not be grated by that Court in the exercise of its jurisdiction under s 476 of the Act. The grounds of the application before Scarlett FM have largely been repeated in the notice of appeal from his Honour’s decision to this Court. Federal Magistrate Scarlett considered:

   ·whether there had been a failure to comply with the obligations of s 424A of the Act;

   ·whether the second Tribunal failed to consider the application according to s 91R of the Act;

   ·whether there was any bias on the part of the second Tribunal;

   ·whether the second Tribunal decision was irrational or illogical;

   ·whether that could constitute jurisdictional error; and

   ·whether there was a breach of s 425(1) within the parameters of SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 231 ALR 592.

9. His Honour considered all of those matters in some detail and was satisfied that there was no jurisdictional error.

10. The appellant appears before me in person, assisted by an interpreter.  In his notice of appeal and as elaborated before me today, he raises the following grounds:

    (1)A failure to consider the application according to s 91R of the Act.

    (2)That the second Tribunal was biased.

    (3)That the second Tribunal failed to carry out its statutory duty, by reason of a failure to comply with s 424A of the Act.

    (4)That the second Tribunal failed to consider his claims correctly.

    (5)That the second Tribunal based its decision on assumptions that did not accord with the evidence.

11. The last two grounds were added in oral submissions.  The Minister has not objected to the consideration of the additional grounds of appeal.

    (1) Section 91R of the Act

12. I am satisfied that the second Tribunal was aware of the requirements of s 91R of the Act, to which it made specific reference in its reasons. The second Tribunal clearly addressed the question whether the Convention applied and also whether the matters the subject of the appellant’s claims amounted to serious harm for the purposes of s 91R(2) of the Act. The appellant was unable to point to any specific matter that suggested that there had been a failure to recognise the requirements of the section. I find no reason to conclude that the second Tribunal failed in that regard.

    (2)  Bias

13. As pointed out to the appellant, this is a serious allegation.  The seriousness of the allegation has been the subject of many decisions of this Court, as is the need to give full particulars.  No such particulars have been provided.  The only matter raised by the appellant is that the second Tribunal did not understand his case and did not give him refugee status.  The allegation of bias is not made out.

    (3) Section 424A of the Act

14. Federal Magistrate Scarlett was unable to discern any failure to comply with s 424A of the Act. The second Tribunal did not accept the truth of the appellant’s claims and gave reasons for those findings. Those reasons were based on information given to the second Tribunal by the appellant at the hearing. The second Tribunal’s findings were based, in large part, on its assessment of the appellant’s credit. The appellant was unable to point to any information for the purpose of s 424A(1) of the Act. As noted at [4], the reference to the inconsistencies and the appellant’s evidence before the first and second Tribunals does not constitute “information” for the purposes of s 424A(1). No failure to comply with s 424A has been established.

    (4)  Consideration of the appellant’s claims

15. Again, the appellant was unable to point to any claim or aspect of his claims with which the second Tribunal did not deal.  The second Tribunal dealt with all aspects of the claims that were made to it, not only the specific claims relating to the questions of corruption but also the appellant’s more general claims based upon his attitude towards environmental protection and the allegations of China’s lack of human rights, specifically freedom of speech.  The second Tribunal specifically considered whether the claims indicated that the appellant holds a political opinion and concern for the lack of human rights and democracy in China.

16. The appellant said, in giving particulars of this aspect of his appeal, that he claimed that it was not possible to go back to China because, if he did return, it would be very easy to be persecuted.  The second Tribunal did consider what would happen to the appellant upon his return to China and whether that could give rise to a well-founded fear of persecution for a Convention reason.  The second Tribunal was not satisfied, on the evidence before it, that the appellant could be subject to persecution on his return to China.  That finding was open to the second Tribunal.  A consideration of the merits of the Tribunal’s decision is not a matter for this Court.  

    (5)  The decision was based upon assumptions that did not accord with the evidence

17. The only particulars given by the appellant of this ground were that the second Tribunal refused his application and that the second Tribunal member thought that his claims were not sufficient and that he had “made them up”. 

18. Those matters are matters of fact and credibility which were matters for the second Tribunal.  The conclusions were supported by the evidence and the material to which the second Tribunal referred.  That evidence and material was constituted by the information that the appellant gave to the second Tribunal.  No other assumption was referred to and I do not see that the second Tribunal’s conclusions were other than based on the evidence and were open to it on that basis.

19. None of the grounds of appeal are made out.  The appellant has not established jurisdictional error on the part of the second Tribunal or error on the part of the Federal Magistrate.  It follows that the appeal should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        21 August 2007

The Appellant appeared in person.
Counsel for the First Respondent:	J Mitchell
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	2 August 2007
Date of Judgment:	2 August 2007