SZIMO v Minister for Immigration & Citizenship

[2007] FCA 515

FEDERAL COURT OF AUSTRALIA

SZIMO v Minister for Immigration & Citizenship [2007] FCA 515

MIGRATION – protection visa – no jurisdictional error

Migration Act 1958 (Cth)

SZIMO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2486 OF 2006

BUCHANAN J
20 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2486 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIMO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	20 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as second respondent.

2.The name of the first respondent be amended to Minister for Immigration & Citizenship.

3.The appeal is dismissed with costs.

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 2486 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIMO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	20 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 18 September 2005.  The next day he applied for a protection (class XA) visa.  His application was refused by a delegate of the first respondent on 20 October 2005.

2. On 14 November 2005 he applied for a review of the delegate’s decision by the Refugee Review Tribunal (‘the RRT’).  The RRT handed down a decision on 14 February 2006 affirming the decision of the delegate not to grant a protection visa.

3. On 13 March 2006 the appellant made an application for judicial review to the Federal Magistrates Court.  That application was dismissed by Emmett FM on 4 December 2006.  By a Notice of Appeal filed on 19 December 2006 the appellant appeals to this Court.

4. The application for judicial review - as filed in the Federal Magistrates Court - had four grounds:

   ‘1.      RRT failed to carry out its statutory duty.

   RRT failed to consider my application according to Section s.424A of the Act.  RRT failed to notify me in writing about the reasons RRT may affirm the decision from DIMIA.

   2.RRT had bias against me when considering my my [sic] application.

   3.RRT refused my application without giving rasonable [sic] foundation.

   4.RRT failed to refer to sufficient independent information for the consideration of my application.’

5. In an amended application filed on 4 July 2006 a single ground was advanced – namely:  ‘The Tribunal failed to carry out its statutory duty.’

6. A number of particulars were provided which may be reduced to the proposition that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) because it must have used information contained in the appellant’s visa application as part of the reason to dismiss his application for review and had failed in its duty to bring the information to his attention and invite his comments.

7. Section 424A provides:

   ‘(1)  Subject to subsection (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

   (c)invite the applicant to comment on it.

   (2)The information and invitation must be given to the applicant:

   (a)except where paragraph (b) applies – by one of the methods specified in section 441A; or

   (b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

   (3)   This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application; or

   (c)that is non-disclosable information.’

8. To examine the allegation made in the amended application for judicial review some discussion of the decision of the RRT is necessary.  The appellant gave oral evidence to the RRT on 12 January 2006.  The RRT decision records that, at the hearing, he ‘essentially repeated his claims’ made in his visa application.  It then recorded further information obtained from the appellant at the hearing.

9. The appellant’s claims were that in April 2005 he was arrested, detained and then tortured whilst in detention because he was found in possession of documents left with him by a business acquaintance, Mr Chen, which documents related to an unregistered religious group in China known as the ‘Shouters’.  These claims were accepted by the RRT, they were not used to decide any matter adversely to the appellant.

10. The RRT also referred to some independent country information to the effect that the authorities in China were intolerant of unregistered religious groups, the Shouters was regarded as a cult by the Chinese authorities and was banned and religious activities were ‘targeted’ but:

    ‘… those reports indicated that it was only active religious activists who attracted the adverse interest of the authorities in China and the information did not support his claim that persons such as himself, that is persons who were not actively involved in religious activities, risked the adverse interest from the authorities.’

11. Independent country information was not required by s 424A to be disclosed to the appellant because it was not specifically about the appellant or another person (see s 424A(3)(a)).

12. The basis of the RRT’s decision adversely to the appellant was that, despite his two week detention in April 2005, there was no indication the appellant had been of any interest to the Chinese authorities either before or after that period and as the appellant ‘stated that he has no interest in religious activities’ the RRT was ‘satisfied that he is not involved or implicated in any activity which will attract the adverse interest of the PRC authorities in the reasonably foreseeable future’.

13. On these grounds the RRT was not satisfied the appellant had a well-founded fear of persecution in China for reason of religion or any other Convention reason.

14. The information upon which these findings were made was provided by the appellant at the hearing and was not required to be given back to him in writing for his comment (see s 424A(3)(b)).

15. The matters I have referred to are, in substance, the reasons given by Emmett FM at paras 24 and 25 of her judgment for rejecting the sole ground in the appellant’s amended application for judicial review.  No error has been, or could be, shown in that conclusion.

16. Despite the limited ground of challenge in his amended application for judicial review, and the fact that, by that amended application, he had effectively abandoned any allegation of bias, at the hearing before Emmett FM the appellant gave voice to such an allegation.  He also suggested that the RRT made its decision ‘on suspicion and a guess’, that the RRT had wrongly assessed he was not a member of the Shouters group (but he had never said he was – he said he was not interested in religion or religious activities) and that the RRT had misunderstood the risk from the Chinese authorities’ perception that he was close to Mr Chen.

17. Emmett FM rejected all these allegations.  She was correct to do so.  None had any apparent substance and some were contradicted by evidence the appellant himself gave to the RRT.

18. The appeal to this Court advances three grounds.  They are:

    ‘2.The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal did not notify me the reason or part of the reason for affirming the decision.

    3.The Tribunal failed to consider my claims for my application for a protection visa. The Tribunal failed to consider my application according to S91R of the Migration Act 1958.

    4.The Tribunal failed to refer to independent information for the consideration of my application.’

19. The first ground was correctly rejected by Emmett FM. 

20. The second ground contains two allegations.  The first is without any merit and obviously wrong.  The second limb is, as the first respondent’s counsel submits, misconceived.  Disposition of the appellant’s claims did not raise an issue requiring consideration of s 91R of the Act.  This appears to be a currently fashionable ground of appeal but it has no application to the present matter.

21. The third ground has no basis in fact.  The RRT did refer to independent country information.  Some supported the appellant’s claims, some did not.  The RRT explained the use which was made of the information.  As earlier discussed, it was not required to be put to the appellant for his comment.

22. At the hearing of the appeal the appellant, through an interpreter, in effect, repeated the matters set out in the Notice of Appeal but added as well that the RRT was biased.  Mr Frew, who appeared for the first respondent relied on the written submissions he had filed and added, as to the allegation of bias, a reference to para 29 of the judgment of Emmett FM where her Honour said:

    ‘The applicant also contended this morning that the Tribunal was biased, however, no particulars were provided and there was no evidence to support such a contention.’

23. The same may be said for the allegation made to me. 

24. When he was invited to add anything further the appellant indicated he had not seen a copy of the written submissions for the first respondent.  He was shown a copy of a letter addressed to him dated 28 February 2007 from solicitors for the first respondent telling him of the time and place of the hearing of the appeal and stating that a copy of the written submissions were attached thereto.  He accepted seeing the letter but not any attachment.

25. A copy of the written submissions for the first respondent was then provided to him and the matter was stood down so that they could be read to him as translated.

26. When the hearing resumed the appellant did not specifically address the first respondent’s written submissions but added to his earlier remarks, that the RRT had wrongly assumed he would not be persecuted if he returned to China where he had in fact been earlier persecuted for religious activities.  I understood these remarks to relate to the matters he had relied on before the RRT and to suggest the RRT had reached a wrong conclusion about them.  For the reasons I have already given I am not satisfied that any relevant error has been established.

27. I am satisfied the appellant was not denied a fair opportunity to advance any argument he wished in support of his appeal.

28. The challenges to both the decision of the RRT and the judgment of Emmett FM are without substance.  No jurisdictional error has been shown in the work of the RRT.  No error has been shown in the judgment of Emmett FM.

29. I will dismiss the appeal with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        20 April 2007

The Appellant is self represented
Counsel for the Respondent:	Mr Stephen Free
Solicitor for the Respondent:	Ms Zoe McDonald of DLA Phillips Fox
Date of Hearing:	5 March 2007
Date of Judgment:	20 April 2007