SZHTA v Minister for Immigration and Citizenship
[2007] FCA 300
•21 February 2007
FEDERAL COURT OF AUSTRALIA
SZHTA v Minister for Immigration and Citizenship
[2007] FCA 300SZHTA v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNALNSD 1876 OF 2006
LINDGREN J
21 FEBRUARY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1876 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHTA
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentJUDGE:
LINDGREN J
DATE OF ORDER:
21 FEBRUARY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs of the appeal.
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 1876 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHTA
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentJUDGE:
LINDGREN J
DATE:
21 FEBRUARY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from a decision of the Federal Magistrates Court of Australia ([2006] FMCA 1388) that was delivered on 7 September 2006 by Scarlett FM. That Court dismissed an application for review of a decision of the second respondent, Refugee Review Tribunal (‘the Tribunal’), which has filed a submitting appearance on this appeal. The Tribunal’s Decision Record was signed on 11 October 2005 and handed down on 1 November 2005. The Tribunal affirmed a decision of a delegate of the first respondent (respectively ‘the Delegate’ and ‘the Minister’) not to grant a protection visa to the appellant. The Delegate had given that decision on 26 July 2005.
The appellant is a national of the People’s Republic of China, who arrived in Australia on 29 May 2005. He applied for the protection visa on 24 June 2005. His claim was that he had a well founded fear of persecution in China on the ground of religion.
The appellant claimed to have worked as a taxi driver in Tianjin in China from 1994 to 2005. He left China lawfully on 28 May 2005 on a Chinese passport issued in 2002 and on an Australian business visa issued in Beijing on 11 May 2005.
According to his protection visa application form and accompanying documents, the appellant had never previously travelled outside China, had never been convicted of any crime or offence, and, to the best of his knowledge, was not the subject of any criminal investigation or pending criminal charges. He had never been deported or removed from any country.
Entries in the passport indicated, however, that the appellant had in fact previously travelled outside China on at least one occasion, having travelled to Germany on 31 March 2004 and returned to China on 7 April 2004.
The appellant’s claims for protection were set out in an undated and unsigned statement which accompanied his application for the protection visa. According to that statement, the appellant had been a practitioner of Falun Dafa, and tried to conduct himself according to its principles of “truthfulness, compassion, forbearance”. According to the statement, the appellant went to Beijing at the end of 2001 to appeal for ‘justice for Falun Dafa’, but no one listened to him so he went to the Great Wall and practised Falun Gong exercises for which he was arrested and later sentenced to one year of forced labour at the “Tianjin City Forced Labour Camp”.
The appellant claimed in the statement that while in the camp he suffered “all kinds of inhuman torture”. He claimed that he renounced his faith in February 2002 and was released in April 2002. However, he said he found the abandonment of his faith hard to accept, and returned to Falun Dafa in early 2003. On hearing about this, “two cruel female police officers from the labour camp” went to his workplace and threatened to arrest him if he did not again renounce Falun Dafa. He realised that he would face imprisonment again. His father bribed a “high government official” to issue a passport to the appellant, and the appellant then applied for the business visa to come to Australia, where he sought protection.
It will be seen that according to this version of events, the passport and the visa were applied for as a result of the visit of the two female police officers to the appellant’s place of employment and their threat to arrest him, apparently early in 2003. However, the appellant’s passport had in fact been issued as early as in 2002, and the appellant did not apply for the business visa until 8 April 2005.
On 15 September 2005, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) inviting him to comment on potential adverse material. I will not set out the letter, but it suffices to note that among the matters put to the appellant in the letter for comment were the fact that contrary to an answer in his protection visa application form, he had travelled outside China at least once and then returned to China, and the fact that he had obtained his passport prior to the alleged threats being made to him by the two female police officers in “early 2003” and had apparently applied for the business visa in 2005.
The letter invited the appellant to provide comments by 10 October 2005 and advised him that if he did not do so by that date, the Tribunal might make a decision on his case without further notice. He did not respond.
The Tribunal handed down its decision on 1 November 2005 without inviting the appellant to attend a hearing, because he had not responded to the letter; see ss 424C(2), 425(2)(c), 425(3) of the Act.
In its reasons for decision, the Tribunal simply did not accept that the appellant had a fear of persecution. The Tribunal inferred that the appellant’s return to China after the visit to Germany was voluntary. As well, the Tribunal concluded that the appellant had not felt fearful in the period since obtaining his passport in September 2002 down to his obtaining the business visa for travel to Australia in April 2005.
In his application for review filed in the Federal Magistrates Court on 5 December 2005, the appellant stated as the grounds of his application for review o the Tribunal’s decision:
1.An order that Mr Bruce MacCarthy did not constitute the Refugee Review Tribunal in any further hearing or consideration of the matter.
2.I am a Falun Gong practitioner when I was in China.
3.I was prosecuted by the Chinese Government because I am a Falun Gong member.
The Federal Magistrate, Scarlett FM, noted the appellant’s claims and observed that there was no jurisdictional error and that the Tribunal’s decision was therefore a privative clause decision as defined by s 474(2) of the Act. That Court dismissed the application for review and ordered the appellant to pay the Minister’s costs fixed at $2500.
In his notice of appeal to this Court filed on 26 September 2006, the appellant stated as his grounds of appeal:
1. I am a Falun Gong practitioner when I was in China.
2.I was prosecuted by the Chinese Government because I am a Falun Gong member.
3.I believe that my fear of persecution is well-founded if I return to China.
Clearly, these “grounds” simply reassert claims that the appellant had made before the Tribunal.
On the hearing today, I asked the appellant if he wished to say anything in support of his appeal and he said he only asked that he receive a fair hearing. I also explained that the grounds on which this Court can allow an appeal are very limited.
No reason is shown to doubt the correctness of the reasons of Scarlett FM and the appeal should be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 9 March 2007
Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondent: Ms T Quinn, DLA Phillips Fox Date of Hearing: 21 February 2007 Date of Judgment: 21 February 2007
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