SZICO v Minister for Immigration and Citizenship

[2010] FCA 821

FEDERAL COURT OF AUSTRALIA

SZICO v Minister for Immigration and Citizenship [2010] FCA 821

Citation:		SZICO v Minister for Immigration and Citizenship [2010] FCA 821
Appeal from:		SZICO & Ors v Minister for Immigration & Citizenship & Anor [2010] FMCA 291
Parties:		SZICO, SZICP and SZICQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 541 of 2010
Judge:		TRACEY J
Date of judgment:		4 August 2010
Legislation:		Migration Act 1958 (Cth), ss 48B, 91R(3), 242A, 417
Cases cited:		SZICO & Ors v Minister for Immigration & Citizenship & Anor [2010] FMCA 291
Date of hearing:	4 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	24
The Appellant appeared in person
Counsel for the Respondents:	Ms L Buchanan
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 541 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZICO
First Appellant

SZICP
Second Appellant

SZICQ
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	4 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The First and Second Appellants pay the costs of the First Respondent.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 541 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZICO
First Appellant

SZICP
Second Appellant

SZICQ
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	4 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 28 April 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 15 June 2009:  SZICO & Ors v Minister for Immigration & Citizenship & Anor [2010] FMCA 291. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the Appellants.

   BACKGROUND

2. The First Appellant, his wife (the Second Appellant) and their son (the Third Appellant) are citizens of China who arrived in Australia on 6 December 2002. On 28 May 2003 the Appellants lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 17 June 2003, a delegate of the First Respondent decided to refuse their application. They appealed to the Tribunal on 22 July 2003, and on 19 December 2003, the Tribunal affirmed the decision under review. An application for judicial review was made to the Federal Magistrates Court and, on 30 March 2006, that application was dismissed as incompetent because it was filed out of time. An appeal to the Federal Court was dismissed on 21 December 2006. The Appellants also applied to the Minister under s 417 of the Migration Act 1958 (Cth) (“the Act”) seeking Ministerial intervention. The applications were made on 21 April 2004 and 5 November 2007. On both occasions, the Minister decided not to exercise his power. On 3 June 2008, however, the Minister decided to allow the Appellants to make a second application, pursuant to s 48B of the Act.

3. The Appellants again applied to the Department of Immigration and Citizenship for protection visas.  A delegate of the first Respondent refused the application on 22 September 2008.  On 30 September 2008 the Appellants appealed to the Tribunal against that decision.

   REFUGEE REVIEW TRIBUNAL

4. The Appellants claimed to fear persecution as Yiguan Dao practitioners, an outlawed Daoist religious sect in China.  The First and Second Appellants claimed to have practised secretly in China since 1995.  The First Appellant claimed that he was detained for one day in early 2002, was tortured, and released only due to a bribe paid by a relative.  The Third Appellant claimed that he became a Yiguan Dao practitioner in Australia.  The Appellants all claimed that they will be unable to practise Yiguan Dao in China without fear of detection and persecution.

5. The Tribunal found that the First Appellant was not a credible witness, and that he was willing to change his evidence to address perceived weaknesses in his account.  The Tribunal did not accept that he had any association with Yiguan Dao in China based upon his limited knowledge of Yiguan Dao; his unconvincing explanation for this limited knowledge; the inconsistencies in his evidence; the fact that he only raised the claim regarding his detention in 2002 for the first time before the Tribunal; the Appellants’ delay in leaving China; the misleading information provided regarding their travel history; their delay in applying for a protection visa; and their failure to make contact with Yiguan Dao practitioners in Australia until 2005.

6. The Tribunal did not accept that the Second Appellant was a Yiguan Dao practitioner in China.  While it accepted that she had previously relied upon her husband’s claims, it did not accept that this explained why she had made no mention of her involvement in Yiguan Dao until 2008 and found this claim to be a recent one of doubtful credibility.  As her activities in China also relied upon her husband’s account, the Tribunal’s adverse finding in relation to the husband led it to find that she was not a practitioner or a spouse of one.  It also found that her travel outside of China, without enquiring about seeking refugee status, supported this finding.  The Tribunal took into account, in assessing her claims, that she claimed to suffer from depression, but observed that there was nothing to cast doubt on her capacity to present her case.

7. The Tribunal accepted that all three Appellants had engaged in Yiguan Dao activities in Australia since 2005. However, it was not satisfied that the First and Second Appellants had engaged in this conduct otherwise than for the purpose of strengthening their refugee claims, and disregarded it for the purposes of s 91R(3) of the Act.

8. The Tribunal found that the Third Appellant had engaged in Yiguan Dao in Australia because his parents had instructed him to do so and because he had accepted that the classes were good for his temperament.  It found this conduct was not for the purpose of strengthening his refugee claims. The Tribunal did not accept, however, that the son lives in a Yiguan Dao household, or that he would be encouraged to engage in such practice if he returned to China.  Furthermore, it did not accept that he had any genuine affinity with the sect that would motivate him independently to practise the religion if he returned to China. The Tribunal also considered a claim that the Third Appellant had been told negative things about Chinese politics and its economic system, but did not accept that he had developed a political opinion that would give rise to any conduct in China that would attract the adverse attention of the authorities.

9. The Tribunal did not consider that any of the other concerns raised by the Appellants about returning to China gave rise to the possibility of ‘serious harm’ or any Convention related persecution.  The Tribunal was, therefore, not satisfied the Appellants were persons to whom Australia owed protection obligations under the Convention, and affirmed the decision under review.

   FEDERAL MAGISTRATES COURT

10. The Appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 16 July 2009. That application contained the following grounds:

    1.The Refugee Review Tribunal failed to consider my application according to s.91R of the Migration Act 1958 because of the Tribunal’s bias against me.

    2.The Refugee Review Tribunal failed to carry out its statutory duties. The Tribunal did not notify me of part of the reasons for affirming the decision of the Immigration Department. The Tribunal failed to consider my application according to s.424A of the Migration Act.

11. In respect of ground 1, the Federal Magistrate noted that this complaint was not particularised, and there was no attempt by the Appellants to identify what aspect of their claims that the Tribunal ignored.  Similarly, in the absence of any particularisation or submissions identifying what aspect of the Tribunal decision demonstrated actual or apprehended bias, it was not apparent from the face of the Tribunal’s decision that this complaint had any substance.  In these circumstances, his Honour was not satisfied that this claim could be sustained.

12. In respect of ground 2, the Federal Magistrate found that the Tribunal provided the Appellants with two detailed s 424A letters, to which the Appellants responded.  As the ground was not particularised and no submissions were made in this regard, his Honour held that it was not apparent, on a fair reading of the material available, that a breach of s 424A had occurred.

13. The Federal Magistrate dismissed the application.

    APPEAL TO THIS COURT

14. The notice of appeal to this Court was filed on 18 May 2010. The following grounds appear in the notice:

    1.Our whole family members have been members of Yiguan Dao which has been persecuted by the Chinese authorities. I was arrested for my practice in February 2002 and tortured. The case against me was closed after my family member arranged a bribe to be paid.

    2.The Refugee Review Tribunal member failed to take my claims into account and refused my application. The Refugee Review Tribunal member had a bias towards my application of protection visa. He didn’t made [sic] his decision according to s.91R of the Migration Act 1958.

    3.The Refugee Review Tribunal member made a jurisdictional error in his decision.

    4.The Judge of the Federal Magistrates Court confirmed the decision of the Refugee Review Tribunal member.  

    No particulars were provided.

    SUBMISSIONS OF THE APPELLANT

15. Although invited to do so the Appellants filed no written submissions in support of their appeals.  The First Appellant appeared at the hearing with the assistance of an interpreter.

16. The First Appellant said that his notice of appeal had been prepared by a friend.  When invited to elaborate on some of the grounds he displayed a very limited understanding of the issues raised.

17. Ground 1 does no more than seek to re-agitate a factual issue which was resolved by the Tribunal adversely to the First Appellant.  Ground 4 merely summarises the outcome of the application for judicial review in the Federal Magistrates Court.

18. On a fair reading, Grounds 2 and 3, when read together, can be understood as being a rephrased version of the first ground argued before the Federal Magistrate. When asked what the Tribunal member had done to demonstrate bias against the Appellants, the First Appellant said that the Tribunal member had taken into account his relatively low level of education and had rejected his claims of discipleship. The First Appellant said that he did not know what s 91R of the Act provided and could not explain why it was said that the Tribunal had failed to comply with it. The First Appellant was unable to identify any particular jurisdictional error which he contended that the Tribunal had made. Rather, he said that the Tribunal had erred by rejecting his claims and not believing him.

19. The First Appellant made oral submissions in which he said that the Tribunal decision was unfair and asked that the matter be remitted to the Tribunal for further review.  He said that he would be sent to prison if he returned to China because of his religious beliefs.  The Chinese authorities would regard him as a counter-revolutionary. 

20. One of the reasons given by the Tribunal for rejecting the claims of the First Appellant and his wife to have been Yiguan Dao practitioners in China was the First Appellant’s inability to articulate the teachings of the religion.  It was in this context that the Tribunal referred to the First Appellant’s explanation that his difficulty with understanding parts of the philosophy of the religion could be attributed to the fact that he had completed only nine years of education.  When taxed about the teaching and practices of the religion the First Appellant had prefaced his responses by saying that his level of knowledge was about intermediate and that he did not have a sufficiently high level of education to proceed further.  The Tribunal did not accept that his educational level could explain his very limited ability to speak about his own personal observations and understandings of the tenets and practices of Yiguan Dao.

21. There is nothing in the Tribunal’s reasons to suggest that its references to the First Appellant’s level of education (a matter raised by him) was indicative of either actual or apprehended bias. 

22. The Appellants’ submissions did not suggest the possible existence of any other jurisdictional errors on the part of the Tribunal.  A reading of the Tribunal’s reasons does not disclose any such errors.

23. The Federal Magistrate was correct to conclude that there was no jurisdictional error which vitiated the Tribunal’s decision.

    DISPOSITION

24. The appeal should be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        4 August 2010