SZIBP v Minister for Immigration and Citizenship

[2007] FCA 1164

FEDERAL COURT OF AUSTRALIA

SZIBP v Minister for Immigration and Citizenship [2007] FCA 1164

SZIBP v Minister for Immigration and Citizenship [2007] FMCA 404 affirmed
Craig v State of South Australia (1995) 184 CLR 163 cited

Migration Act 1958 (Cth) s 422B

SZIBP v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 597 OF 2007

HEEREY J
3 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 597 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed at $2,500.

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 597 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	HEEREY J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister to refuse the appellant a protection visa.  The nature of the appellant’s visa application, the reasoning of the Tribunal and the decision of the Federal Magistrates Court are set out in the judgment of the Federal Magistrate, which is available on the internet: SZIBP v Minister for Immigration and Citizenship [2007] FMCA 404.

2. The appellant is a citizen of China.  He arrived in Australia on 15 April 2001 on a student visa, valid until 15 March 2004.  After the expiry of his visa he took no further steps to remain in Australia lawfully.  On 22 June 2005 he was detained in immigration detention by the Department.  Shortly after detention he applied for a protection visa.

3. The appellant claimed to have a well-founded fear of persecution in China because he was a Falun Gong practitioner.  He claimed to have started practising Falun Gong two years prior to the ban in 1999.  He claimed to have practised twice a week in a park.  After the ban, his father paid a fine, and later a bribe to the Public Security Bureau so that the appellant would not be arrested.  He continued to practise Falun Gong at the homes of members.  He claimed in his protection visa application that “then things became really bad”.  His father organised a student visa for him and he went to Australia.  He claimed that after he left China, the PSB came to his house and asked his father to write a confession which implicated the appellant’s family in the escape of a Falun Gong member.  The confession was then used to extort money from the appellant’s family and restrictions were placed on his father’s business.  The appellant feared that he would be detained and threatened by the PSB on his return to China. 

   The decision of the Tribunal

4. The appellant attended a hearing before the Tribunal and was represented by an adviser.  The Tribunal found that the appellant was not a Falun Gong supporter, follower or practitioner.  It found that the appellant either invented relevant events, such as encounters with the authorities or persons concerned with Falun Gong, or gave irrelevant meetings and encounters false relevance for the purpose of his application for review.  The Tribunal found that the appellant had met a person in immigration detention who suggested to him that he claim to be a Falun Gong practitioner as a pretext upon which to make a protection visa application. 

   The decision of the Federal Magistrate

5. On the application for review to the Federal Magistrates Court, two grounds were raised.  First, the Tribunal failed to exercise its jurisdiction and provide natural justice because it applied the wrong test of persecution by not accepting that the appellant suffered persecution at the time of leaving China.  Secondly, the Tribunal’s decision was infected with jurisdictional error because it concluded that there would be a lack of persecution upon refoulement on an improper and unreasonable basis which lacked probative evidence.  The Tribunal relied on irrelevant considerations and an inappropriate application of independent country information. 

6. The Magistrate found that was no misunderstanding or misapplication of the relevant test, the findings of credibility were open to the Tribunal, and that the requirements of s 422B of the Migration Act 1958 (Cth) for natural justice had been complied with. There was no basis to find any bad faith on the part of the Tribunal, and no jurisdictional error.

   The appeal to the Federal Court

7. The grounds in the notice of appeal in this Court can be summarised as: first: the Tribunal’s decision was a jurisdictional error; secondly: the Tribunal’s decision involved a procedural error constituting a breach of natural justice; thirdly: the Federal Magistrate did not give sufficient consideration to whether the Tribunal afforded the appellant natural justice, namely whether the Tribunal applied the correct test of persecution under the Convention. The fourth ground is simply a restatement of the test of jurisdictional error from Craig v State of South Australia (1995) 184 CLR 163. The fifth ground was:

   “Regarding to other issues raised from the Tribunal’s decision, it is obviously ill-founded without any substantial evidences excepting it is erroneous findings based.  It is poor knowledge and understanding about membership of a particular social group activities as a Falun-Gong practitioner and organization in China.”

8. The appellant filed written submissions which summarised the history of his visa application and asserted matters relating to his alleged connection with Falun Gong.  The only part dealing with the merits of the appeal were as follows:

   The Tribunal’s findings about the commitment to Falun Gong, it did not deal with the question presented by section 36(2) of the Migration Act – did Australia owe protection obligations to me? That is, the Tribunal did not correctly apply the law to the facts. In the preceding circumstances, the Tribunal constructively failed to exercise its jurisdiction by not asking me the correct questions. That is, the Tribunal was required to consider what might happen to me if I openly practised Falun Gong. Elsewhere, the Tribunal found that “the full facts are yet to be established” as to whether operatives from the Chinese government had knowledge about my Falun Gong activities in Australia.  In the preceding circumstances, it is submitted that the Tribunal constructively failed to exercise its jurisdiction and committed a jurisdictional error of law by not acting judicially in accordance with the requirements of the Act.

9. The appellant attended the appeal.  He was not legally represented, but was assisted by an interpreter.  When invited to address the court orally, he had nothing to say. 

10. In my opinion, the Federal Magistrates Court was correct in dismissing the application for review for the reasons it gave.  Both before the Federal Magistrates Court and this court, the appellant simply raises matters going to merit, coupled with quite generalised legal propositions, which have not been related to the facts of this case. 

11. The appeal is dismissed and the appellant is to pay the first respondent’s costs fixed at $2,500.

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

Associate:

Dated:        3 August 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	L Clegg
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 August 2007
Date of Judgment:	3 August 2007