SZIAG v Minister for Immigration and Citizenship
[2008] FCA 681
•16 May 2008
FEDERAL COURT OF AUSTRALIA
SZIAG v Minister for Immigration and Citizenship [2008] FCA 681
Migration Act 1958 (Cth) s 424A, 424A(3)(b)
House v King (1936) 55 CLR 499
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609SZIAG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 291 OF 2008
MCKERRACHER J
16 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 291 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIAG
Applicant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
16 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant is to pay the costs of the first respondent fixed at $1,400 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.
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 291 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIAG
Applicant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
16 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for leave to appeal from a judgment of a Federal Magistrate (Barnes FM) made on 14 February 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 20 December 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the applicant.
BACKGROUND
The applicant is a citizen of the People’s Republic of China (PRC). In his protection visa application, the applicant claimed to fear persecution in the PRC due to his political opinion. The applicant claims to have suffered discrimination in the past due to his father having been branded a counter-revolutionary during the Cultural Revolution. According to the applicant, he led 50 students from his school in protest activities in Fuzhou during the 1989 pro-democracy movement. He claimed that as a result he was not able to continue his school studies, was questioned by the Public Security Bureau (PSB) and was subsequently expelled in December 1989. He claimed that he subsequently joined the June 4 Society, a secret pro-democracy organisation which disseminated materials, printed a magazine and organised protest activities. The applicant claimed that in 1994 the group was uncovered by the authorities and he was forced to flee.
THE TRIBUNAL DECISION
In submissions lodged in support of his application for review, the applicant asserted that he would be severely punished in China for obtaining a false passport. He also claimed that he became a Christian in Australia and that his religious activities would be limited by the authorities in the PRC. At the Tribunal hearing, the applicant further claimed that he had been involved in an underground church in China. The applicant claimed that he was arrested at his uncle’s church and detained for two months and had been threatened with arrest again later on. The applicant also added that he had been detained for one month after the 1989 protests.
The Tribunal noted that the applicant had made substantially different claims about his circumstances in China at different times. In terms of his religious involvement, the Tribunal noted that the applicant had not raised his membership of an underground church in his initial application and was unable to explain anything about the doctrines of Christianity, his own belief or the underground church. It did not accept that he had become a genuine practising Christian since coming to Australia. The Tribunal did not accept that the applicant had been arrested for underground church activities or that he had been faced with arrest.
The Tribunal noted problems with the applicant’s testimony and suggested that he may not have been recalling events from his own experience. The Tribunal found that the applicant was not a genuine practising Christian in Australia and that he did not hold a fear of persecution in the PRC as a member of an underground church. Due to inconsistencies in his evidence, the Tribunal did not accept that the applicant had been involved in the 1989 pro-democracy movement or had been persecuted in connection with it. It did not accept that the applicant would suffer persecution on this ground or due to his departure using an illegitimate passport.
FEDERAL MAGISTRATE’S DECISION
Before the Federal Magistrates Court the applicant claimed, inter alia, that:
1.The Tribunal failed to afford the applicant natural justice in circumstances where the Tribunal applied the incorrect test of persecution for Convention purposes.
2.The Tribunal failed to deal with the applicant’s claim of persecution by reason of his religious beliefs.
3.The Tribunal committed a jurisdictional error in circumstances where it unreasonably and without probative evidence found that the applicant ‘were a one-off culmination of particular social and political factor’.
The applicant failed to attend the first scheduled hearing on 8 November 2008 and the application for review was dismissed under r 13.03A(c) of the Federal Magistrates Court Rules. The applicant subsequently applied to have those orders set aside.
Her Honour found that it would be futile to reinstate the application. In relation to ground one, her Honour found that the applicant had failed to elaborate on his claim and found that there was no material to support an assertion of jurisdictional error on this basis. Her Honour also found that there was no evidence to support the applicant’s claim that he had been under such stress that he was unable to effectively participate in the Tribunal’s hearing. In relation to ground two, her Honour found that the Tribunal had made a number of relevant findings on the applicant’s religious claims and that no arguable case of jurisdictional error arose. In relation to ground three, her Honour held that although it was not clear what issue the applicant was addressing, the Tribunal’s credibility findings were findings which were open to it and the Tribunal had complied with s 424A of the Migration Act 1958 (Cth) (the Act). Her Honour subsequently dismissed the application.
LEAVE TO APPEAL
In support of the application for leave, the applicant filed an affidavit and a draft notice of appeal in which the applicant raised two grounds:
1.The Federal Magistrate’s refusal of leave in her discretion was ‘so unreasonable or plainly unjust that there had been a failure to properly exercise discretion which the law reposes in the court at first instance’: House v King (1936) 55 CLR 499.
2.The Tribunal failed to comply with s 424A of the Act, and thereby committed jurisdictional error of law.
REASONING
Ground 1
The first ground of appeal is essentially simply a quotation from House v King. However, it does not identify any error in the decision of the learned Federal Magistrate. It must fail.
Ground 2
The second ground contends a failure on the part of the Tribunal to comply with s 424A of the Act. Again, it does not identify any error on the part of the Federal Magistrates Court in exercising discretion not to reinstate the application. Given that the appeal is from her Honour’s judgment rather than from the decision of the Tribunal, it is insufficient simply to point to an alleged deficiency on the part of the Tribunal.
However, in any event, there are no particulars supplied by the applicant in respect of this allegation nor has any ‘information’ been identified that was required to be included in s 424A letter. Further, this ground was disposed of correctly by the learned Federal Magistrate. ‘Information’ for the purposes of s 424A does not include ‘the Tribunal’s subjective appraisals, thought processes or determinations …’: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. Moreover, as her Honour also noted, it is well established that information provided to the Tribunal such as the applicant’s own statements and his own oral evidence at the time of the hearing fall within the exception in s 424A(3)(b) of the Act. There is no scope for this ground of appeal succeeding.
It was open to the learned Federal Magistrate to find for the reasons her Honour gave that the application for judicial review raised no serious issue to be tried. There was no arguable case of jurisdictional error. No error in the discretion exercised by her Honour has been identified by the applicant. No particulars or evidence in support of any alleged error have been articulated. No error is apparent.
CONCLUSION
Accordingly, the application must be dismissed. The applicant is to pay the costs of the first respondent fixed at $1,400 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 16 May 2008
The Applicant represented himself Counsel for the First Respondent: P Snell Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 15 May 2008 Date of Judgment: 16 May 2008
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