SZHSI v Minister for Immigration and Citizenship

[2007] FCA 791

FEDERAL COURT OF AUSTRALIA

SZHSI v Minister for Immigration and Citizenship [2007] FCA 791

SZHSI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD536 OF 2007

COLLIER J
23 MAY 2007
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD536 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHSI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	23 MAY 2007
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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	NSD536 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHSI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	23 MAY 2007
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Driver FM of 12 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 September 2005 handed down 20 October 2005. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

   Background

2. The appellant is a citizen of the People’s Republic of China (“the PRC”) who arrived in Australia on 13 February 2005. On 11 March 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 18 June 2005. On 12 July 2005 the appellant applied to the Tribunal for a review of that decision.

3. The appellant appeared before the Tribunal to give oral evidence, assisted by a Mandarin interpreter. He claimed to have been a Falun Gong practitioner in the PRC who commenced practice after injuring himself at work. The appellant claimed that after the government crackdown in 1999 he was practicing Falun Gong in the park with his group and he was arrested and detained. He claimed he was sentenced to two years in gaol where he was subject to re-education. The appellant claimed that he was released after two years however he could not find employment and was subject to frequent checks by the authorities. The appellant claimed that he departed the PRC with the assistance of a friend and continued his practice of Falun Gong in Australia.

   The decision of the Tribunal

4. The Tribunal:

   ·noted that the appellant was unable to discuss Falun Gong in any detail and was unable to answer basic questions about the practice of Falun Gong

   ·expected that if the appellant was a genuine Falun Gong practitioner he would have been able to demonstrate considerably more knowledge of Falun Gong that he demonstrated during the hearing

   ·did not accept that the appellant had been detained or mistreated for the reason that he was a Falun Gong practitioner

   ·noted the evidence of the appellant indicated he had only attended public practice on one occasion in Australia and that he did not practice Falun Gong in private

   ·did not accept that the need to earn a living or generally being busy, as indicated by the appellant, would prevent a genuine Falun Gong practitioner from finding time to practice.

5. Accordingly, the Tribunal did not accept that the appellant is or ever was a Falun Gong practitioner and affirmed the decision of the delegate of the Minister.

   Grounds before the Federal Magistrate

6. By application filed in the Federal Magistrates Court the appellant asserted that the Tribunal fell into jurisdictional error as it acted with bias and improperly used independent country information. The amended application filed reasserted the claims of the appellant and did not reveal any discernible grounds.

   The decision of the Federal Magistrate

7. The Federal Magistrate stated at [6] – [7]:

   The amended application is irredeemably hopeless and must fail. The original application also fails. It asserts bias and an improper use by the Tribunal of country information. There is no evidence whatsoever to support the assertion of bias…The Tribunal did have regards to country information in relation to the practice of Falun Gong but there was no reason why the Tribunal should not have regard to that material. The application plainly failed before the Tribunal because he was not believed. The state of disbelief reached by the Tribunal derived from the information he gave the Tribunal at the hearing conducted by it.

8. His Honour found that the decision of the Tribunal was free from any jurisdictional error and dismissed the application.

   Notice of appeal

9. By notice of appeal to this Court filed 30 March 2007 the appellant raised the following grounds:

   1.        The Tribunal failed to give natural justice.

   2.The Tribunal failed to fully consider the current situation in applicant’s original country.

   3.        The decision was illogical.

10. The appellant did not file written submissions. At the hearing the appellant said that he was a Falun Gong practitioner, he had told the truth, and he would not have an income if he returned to China.

11. The respondent filed written submissions.

12. The grounds of appeal of the appellant are not particularised, nor supported by submissions or evidence. Further, they fail to identify any error in the decision of Driver FM, which must be the basis of an appeal.

13. The respondent contended in its written submissions that grounds one and three were not raised before the Federal Magistrate and that I ought not grant leave for those grounds to be raised. Notwithstanding that submission, I indicated at the hearing that I was prepared to grant leave in the circumstances.

14. In considering the grounds of appeal however, I am of the view that they are of no substance. In short, there is no basis for the claim that the Tribunal failed to accord natural justice in this case. I note the submission of the respondent that in any event s 422B Migration Act 1958 (Cth) provides that the relevant division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. My attention has not been drawn to any conduct of the Tribunal in breach of any section in that division of the Act, in the pleadings or otherwise.

15. The claim that the decision was illogical is a broad and unsubstantiated assertion, with no pleaded basis. The appellant’s disagreement with the decision of the Tribunal does not make the decision illogical.

16. Accordingly these grounds of appeal fail.

17. In relation to the second ground of appeal, namely that the Tribunal failed to fully consider the current situation in the applicant’s original country, I note that the Tribunal at pp 7-8 of their reasons for decision considered country information referable to the practice of Falun Gong in some detail. There is no evidence before me that the information accessed by the Tribunal was irrelevant, or of such a nature that it would otherwise go to the jurisdiction of the Tribunal. Further, I note that the weight given by the Tribunal to country information is a matter for the Tribunal itself as part of its fact-finding function: NAHI v MIMA [2004] FCAFC 10 at [11]. In my view this ground of appeal also fails.

    THE COURT ORDERS THAT:

    1.The appeal be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        23 May 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	23 May 2007
Date of Judgment:	23 May 2007