SZIOY v Minister for Immigration and Citizenship

[2007] FCA 1838

FEDERAL COURT OF AUSTRALIA

SZIOY v Minister for Immigration & Citizenship [2007] FCA 1838

Migration Act1958 (Cth) s 91R(3)

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 cited
SZIOY v Minister for Immigration [2007] FMCA 1359 considered

SZIOY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1754 OF 2007

BENNETT J
21 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1754 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	21 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s 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 1754 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIOY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	21 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of China.  He came to Australia in 2005 to visit his son, who is a student in Sydney.  The appellant says that, after he arrived in Australia, he came to realise certain matters about the Communist Party in China.  He claims that he signed and then announced that he had signed a document to the effect that he would no longer be a member of the Communist Party (‘the resignation’).  He says that as a political defector he may be mistreated by the Chinese Government upon return to China if the Government was aware that he signed such a document in Australia.  The appellant’s application for a Protection (Class XA) visa was refused.

   THE TRIBUNAL DECISION

2. At the hearing before the Refugee Review Tribunal the appellant told the Tribunal that he did not know the address of the place where he had signed the resignation and that he did not have a copy of it.  The Tribunal told the appellant that even if it were to believe that he had signed such a document it was bound to ignore the act if it was satisfied that he had acted for the sole purpose of establishing a claim for refugee status.  The appellant denied that this was the case.

3. In the Tribunal the appellant also referred to and relied upon the defection of a person described as the Secretary of the Chinese Embassy in Australia, who had been successful in obtaining refugee status.  The Tribunal’s reasons record that it pointed out to the appellant that the circumstances in which that person became a refugee were not the same as his.  The Tribunal reasons record that the appellant acknowledged that to be the case.

4. The Tribunal noted that the appellant’s claim for refugee status was to a well-founded fear of persecution in China because of imputed political opinions.  The Tribunal accepted that the appellant had been a strong supporter of the Communist Party in China and that, after arrival in Australia, he changed his mind about circumstances in China and the role of the Communist Party.

5. The Tribunal was not satisfied that the document recording resignation from the Communist Party existed.  It noted that there was no evidence that, if the resignation did exist, the Chinese Embassy in Australia would have been made aware of it or that, as a consequence, the appellant would be seen as a political defector. 

6. In summary, the Tribunal was satisfied that the appellant had never suffered persecution in China for a Convention related reason and that the appellant did not have a well founded fear of persecution in the reasonably foreseeable future.  The Tribunal gave short but clear reasons for those conclusions and the finding was open to it on the evidence before it. 

7. The Tribunal also found that if the resignation did exist, it was satisfied that the appellant had signed it for the sole purpose of strengthening his claim for refugee status. Under s 91R(3) of the Migration Act1958 (Cth) (‘the Act’) the Tribunal was then obliged to disregard the resignation.

   THE FEDERAL MAGISTRATE’S DECISION

8. On the application for review to the Federal Magistrate (SZIOY v Minister for Immigration [2007] FMCA 1359) the appellant raised a number of grounds as to why the Tribunal decision was affected by jurisdictional error:

   (a)that the Tribunal took into account an irrelevant consideration;

   (b)that the Tribunal failed to afford procedural fairness; and

   (c)that the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning (at [6]). 

9. By way of particulars the appellant said that the Tribunal’s conclusion that he had signed the resignation for the purpose of strengthening his claim was illogical (at [8]).  A further particular was that the Tribunal had made an incorrect assumption in assuming that the Chinese authorities were unaware of the resignation.

10. Federal Magistrate Nicholls considered the appellant’s grounds of review at some length.  His Honour found that there was no basis for the assertion that the Tribunal had taken into account an irrelevant consideration (at [13]–[14]).  In the absence of a transcript of the Tribunal hearing, a copy of which the Registrar had directed the appellant to file, but which was not filed (at [17]), his Honour found there was nothing to support an allegation of a denial of procedural fairness (at [18]).

11. In coming to that conclusion, his Honour independently considered whether the Tribunal had complied with procedural statutory requirements.  His Honour considered that the conclusions of the Tribunal were logical.  In coming to that conclusion his Honour put aside the question of whether or not illogical reasoning would be sufficient to reveal jurisdictional error (at [20]).

    THE APPEAL

12. In his notice of appeal from the decision of the Federal Magistrate the appellant raises three grounds.  In substance, those grounds are: 

    1.That the Tribunal’s conclusions were based on illogical reasoning.

    2.That the Tribunal acted capriciously and arbitrarily.

    3.That the Tribunal made an incorrect assumption in assuming that the Chinese authorities were unaware of the resignation.

    Is there illogical reasoning?

13. The appellant appeared in this appeal in person assisted by an interpreter.  When asked for particulars of this ground, the appellant raised factual matters centred around what he says is the current position in China regarding freedom of speech.  Those matters are not relevant to the appeal.

14. In the notice of appeal the particular given for illogical reasoning was the Tribunal’s conclusion that the resignation was for the purpose of strengthening his claim for refugee status.  The Tribunal did not give detailed reasons for its conclusion in that regard.  The conclusion is perhaps implicit from the reasoning of the Tribunal regarding the claims and evidence of the appellant.  It is not a question of illogical reasoning.  Further, mere illogical reasoning does not of itself found jurisdictional error (NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30]).

15. However, the resignation is only relevant if, contrary to the finding of the Tribunal, the resignation did exist. The Tribunal reached a firm conclusion that the resignation did not exist and gave clear reasons for that conclusion. The finding with respect to s 91R(3) of the Act was not the basis for the Tribunal’s conclusion.

    Capricious and arbitrary conduct

16. The assertion that the Tribunal acted capriciously and arbitrarily was not, according to the appellant, an allegation of denial of procedural fairness or an allegation of bias.  The basis for this ground was that the former member of the Chinese Embassy, who had applied for refugee status, had had his application granted.

17. The fact that another person was granted refugee status in circumstances where the details of that application were not before the Tribunal does not mean that the refusal by the Tribunal to be satisfied that the appellant had a well founded fear of persecution for a Convention reason was arbitrary or capricious.

18. It was for the appellant to satisfy the Tribunal as to his own claim.  The Tribunal, after hearing the appellant, was not so satisfied.

    Incorrect assumption

19. This ground is misconceived.  The Tribunal did not assume that the Chinese authorities were unaware of the resignation.  There was no evidence that the Chinese Embassy in Australia or the Chinese authorities were or would have been made aware of the document, if that document existed.  The appellant failed to satisfy the Tribunal in that regard.  The basis of the Tribunal’s conclusion was that it did not accept that the appellant had signed the resignation.  That finding was clearly open to the Tribunal and the Tribunal gave detailed reasons for it.  It follows that there was no jurisdictional error by the Tribunal in coming to that conclusion.

    Conclusion

20. The appellant has failed to establish any error on the part of the Federal Magistrate and, indeed, none was specifically asserted.  It follows that the appeal is dismissed.

21. The appellant is to pay the first respondent’s costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        28 November 2007

The Appellant was self represented.
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	21 November 2007
Date of Judgment:	21 November 2007