SZHSC v Minister for Immigration and Citizenship

[2007] FCA 1277

FEDERAL COURT OF AUSTRALIA

SZHSC v Minister for Immigration and Citizenship [2007] FCA 1277

SZHSC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD799 OF 2007

EMMETT J

6 AUGUST 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD799 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHSC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	6 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal in the sum of $2400.

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	NSD799 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHSC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	6 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the Peoples Republic of China.  He arrived in Australia as a visitor in January 2005.  On 25 January 2005, he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). On 11 April 2005, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused the application for a protection visa. On 18 May 2005, the appellant then lodged an application for review of that decision by the second respondent, the Refugee Review Tribunal (the Tribunal). On 5 October 2005, the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 27 October 2005.

2. The appellant then commenced a proceeding in the Federal Magistrates Court on 30 November 2005 seeking judicial review of the Tribunal’s decision.  An amended application was filed on 29 March 2006.  The grounds of that application were that there was an error of law in the Tribunal’s decision constituting a jurisdictional error and that there was procedural error in the Tribunal’s decision constituting an absence of natural justice.  Those grounds were particularised by allegations that the Tribunal failed to assess the appellant’s fear of persecution properly and that:

   ·the Tribunal failed to comply with its obligations under s 424A(1) of the Act;

   ·the Tribunal failed to comply with its obligations under s 425 of the Act;

   ·the Tribunal’s decision gave rise to a reasonable apprehension of bias; and

   ·the Tribunal misunderstood the legal meaning of refugee.

3. It appears that before the Federal Magistrates Court, the only ground pressed, was that based on s 424A of the Act.  On 19 April 2007, the Federal Magistrates Court ordered that the application be dismissed and ordered the appellant to pay the Minister’s costs.  By a notice of appeal filed on 8 May 2007, the appellant appeals to the Federal Court of Australia from the orders of the Federal Magistrates Court.  The grounds of appeal are that the Federal Magistrate erred in law and was wrong in finding that the Tribunal acted properly in its findings.  Those grounds are particularised as follows:

   (1)the Tribunal failed to comply with its obligations under s 424A(1) of the Act in that it failed to provide the appellant particulars of the inconsistent information in relation to its final decision.  It failed to ensure that the appellant understood that the information would be directly in relation to his review application.  It failed to invite the appellant to comment on the information;

   (2)the Tribunal failed to consider the appellant’s claims properly and fairly in that the appellant’s claims are supported by independent country information and the Tribunal significantly misstated the effect of country information.

4. The appellant appeared without legal representation but had the assistance of an interpreter in making his submissions.  He provided no written submissions to the Court.  However, he read from notes that he had made.  For the most part, the appellant’s submissions reiterated the claims that he made to the Tribunal.  He complained that the Tribunal’s findings involved rejection of his evidence.  I did not understand him to point to specific country information that he said was misunderstood or misconstrued by the Tribunal. 

5. The Tribunal’s findings were that the appellant’s claims are not in accordance with the independent information available to it in relation to the situation in China.  The Tribunal described two incidents to which the appellant made reference in his evidence.  In the first incident the appellant referred to the arrest of a Mr Lin and three of his students for distributing pro-democratic materials.  The Tribunal said that the appellant claimed that Mr Lin and his students were released after 100 students and teachers mounted a protest at the Fuqing Public Security Bureau (the PSB).  The Tribunal rejected that evidence on the basis that the information available to it indicated that the PSB responds to demonstrations by using armed force to break them up. 

6. The second incident to which the Tribunal referred was the arrest in early October 2004 of around 60 people on suspicion of participating in an underground Christian church.  The appellant claimed that hundreds of people mounted a large protest that developed into the largest demonstration in Fuqing City between October and November 2004.  The Tribunal could find no evidence from independent sources that any of the demonstrations to which the appellant referred took place.  The Tribunal considered that if, as the appellant claimed, around 60 people suspected of participating in an underground Christian church had been arrested, there would have been some report of that incident. The Tribunal found that one of the things that is closely watched in China is the Christian church and in particular unregistered or underground churches.  The Tribunal did not accept that the appellant was telling the truth about the events which he says prompted him to leave China. 

7. While the Tribunal accepted that the appellant was a driver for the PSB, as he claimed, it did not accept his claim that he had disclosed official information to relatives of people who had been arrested by the PSB.  Nor did the Tribunal accept the appellant’s claim that he instigated demonstrations in relation to human rights abuses or miscarriages of justice in China.  The Tribunal therefore did not accept that if the appellant returns to China there was a real chance that he would be arrested and imprisoned because his actions had been uncovered by an internal investigation group as he claimed. 

8. The Tribunal did not accept that the appellant’s home has been searched and that his father and wife have been investigated by the PSB since he left China as he claimed.  Ultimately the Tribunal was not satisfied that the appellant has a well founded fear of being persecuted for a Convention reason if he returns to China.

9. The only ground pressed before the Federal Magistrates Court was failure to comply with s 424A.  The Federal Magistrates Court dealt with the three aspects of that ground.  The first was that there was a failure to comply with s 424A in relation to independent country information.  The Federal Magistrates Court accepted that the general information used by the Tribunal falls within the exception in s 424A(3)(a).  The Federal Magistrates Court also considered that the Tribunal’s reasoning about inconsistencies between the appellant’s account and the independent sources was not itself information for the purposes of s 424A.  Rather, the Federal Magistrates Court considered that that was an aspect of the Tribunal’s objective appraisal of the evidence rather than being information of which the Tribunal had been told. 

10. The Tribunal also had regard to a statement by the appellant annexed to his protection visa application.  However, in a letter to the Tribunal, the appellant referred expressly to the claims previously provided by him to the Minister’s Department.  The Federal Magistrates Court concluded from the terms of the letter that the Tribunal was intended to read the statutory declaration and thus it was information provided to the Tribunal by the appellant and was, therefore, subject to the exceptions set out in s 424A(3)(b). 

11. There was no error on the part of the Federal Magistrates Court.  There was certainly no failure to comply with s 424A on the part of the Tribunal.  There is no substance in the assertion that the Tribunal failed to consider the appellant’s claims properly and fairly.  It follows that the appeal must be dismissed.

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

Associate:

Dated:        6 August 2007

The Appellant appeared in person.
Counsel for the Respondent:	Ms A Mitchelmore
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 August 2007
Date of Judgment:	6 August 2007