SZIQA v Minister for Immigration and Citizenship

[2007] FCA 358

FEDERAL COURT OF AUSTRALIA

SZIQA v Minister for Immigration and Citizenship [2007] FCA 358

SZIQA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2095 OF 2006

BESANKO J
15 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2095 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIQA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	15 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended from ‘Minister for Immigration and Multicultural Affairs’ to ‘Minister for Immigration and Citizenship’.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the appeal.

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 2095 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIQA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	15 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate. The appellant applied to the Federal Magistrates Court for constitutional writs in respect of a decision of the Refugee Review Tribunal. The Magistrate dismissed the application. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the appellant’s application for a protection visa.

2. The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 31 August 2005. On 14 September 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (‘the Act’). On 13 October 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the appellant’s application for a protection visa. On 17 November 2005 the appellant applied to the Tribunal for a review of that decision. The Tribunal conducted a hearing on 18 January 2006 and the appellant attended the hearing and gave evidence.

3. The appellant’s case was that he had a well-founded fear of being persecuted in China because of his political opinions. His case was that he and some friends or associates established a newspaper in Fuqing City and that the newspaper advocated democracy. The newspaper was called the News Freedom Herald. There was a newspaper of the same name published in the United States of America (‘USA’) which was banned in the People’s Republic of China, and the appellant’s case was that he and his friends or associates were inspired to use the same name for their newspaper. I will refer to the News Freedom Herald published in the USA as the ‘United States newspaper’. The appellant’s case was that the first issue of the newspaper with which he was involved was published in June 2004. The Tribunal member said that the appellant made broad statements about the newspaper having ‘produced strong influence in Fuqing area’, without describing in any detail how such influence was observed or measured. The Tribunal member said that the appellant provided no details as to how or why he undertook such ‘a risk-ladened venture’ only to retreat so quickly, as he claimed to do, when he allegedly realised that the newspaper ‘might’ come to the attention of the authorities.

4. The appellant’s case was that the last issue of the newspaper with which he was involved was published in June 2005. The appellant’s case was that some of his friends or associates involved in the publication of that newspaper were arrested by the authorities and that he himself was arrested and detained in July 2005. However, he was able to convince the authorities that he had nothing to do with his friends’ activities and he was released. The appellant obtained a visa and left China as soon as he could. His case was that the authorities took a more serious interest in him after he had left China.

5. The Tribunal member said that none of the evidence given by the appellant helped to resolve what he called the ‘apparently gaping discrepancy’ between the appellant’s courage in setting up the newspaper, implicitly on the assumption that the authorities would never find out about it, and what the Tribunal member called ‘his timorous decision’ to escape from China before they did. The Tribunal member said that the appellant’s evidence to the Tribunal in relation to the thinking behind the alleged publication of the newspaper was ‘vague and unimpressive’.

6. The Tribunal member said that the appellant gave incorrect information to the Tribunal about the United States newspaper that supposedly inspired the newspaper with which he was involved. The appellant told the Tribunal that the last issue of the United States newspaper that he saw was the June 2005 issue. The Tribunal member put to the appellant that based on reports on the Internet, the United States newspaper went out of publication in the USA several years earlier. The Tribunal member said that the closure of the United States newspaper in the USA was reported in 1996. The Tribunal member questioned the appellant’s reliability on the matter. The appellant said that he saw the June 2005 issue of the United States newspaper on the Internet. He was not able to identify any sites and he was unable to explain the Tribunal’s inability to find any reference to a current version of the United States newspaper. The Tribunal member said that during the hearing he could not discover a link with the United States newspaper, but that after the hearing he continued his research and found ‘an October 2005 update of a website belonging to Chinese Constitutionalists Association, which refers to an electronic version of the News Freedom Herald at the URL ‘>

   The Tribunal member said that the discovery of the United States newspaper still circulating in electronic form appeared to add some authentic background to the appellant’s claim. However, his evidence throughout the hearing continued to be ‘unimpressive’. The Tribunal member made reference to a topic upon which he said the appellant ‘changed his story’.

7. The Tribunal member placed significant weight on the fact that the appellant was able to leave China without any difficulty. The appellant’s explanation for that was that the authorities allowed him to leave because they did not have enough evidence against him at the time.

8. The Tribunal member said that he did not accept that the appellant has or had any active interest in politics in the People’s Republic of China on the ‘implausible, inconsistent and vague evidence’ before him. He said that he relied on the fact that the appellant had unfettered use of his passport in concluding that he was of no relevant interest to the authorities in China. He said that the appellant was not a reliable witness and that he was not satisfied that he faced a real chance of Convention-related persecution in China. He said that the appellant’s claim of fear and persecution was not well-founded. He therefore dismissed the application for review.

9. The appellant raised a number of arguments on his application to the Federal Magistrates Court for constitutional writs. On appeal to this Court the appellant challenges the Magistrate’s decision on two grounds. The first ground is that the Magistrate erred in not finding that the Tribunal member had failed to comply with s 424A of the Act in two respects. The second ground is that his application has not been considered properly and fairly, either by the Tribunal or by the Magistrate.

10. As to the alleged failure by the Tribunal to comply with s 424A of the Act, I start by setting out the terms of that section:

    ‘424A  Applicant must be given certain information

    (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.’

11. The two respects in which the appellant submits the Tribunal did not comply with that section are as follows:

    1.The Tribunal member found that the appellant was not a reliable witness and that was the reason, or part of the reason, for affirming the decision under review. In turn, one of the reasons the Tribunal member concluded the appellant was not a reliable witness was the inconsistency between his statement as to the last issue of the United States newspaper he had seen and information the Tribunal member discovered on the Internet during the hearing. It was said by the appellant that the information the Tribunal member discovered on the Internet after the hearing did not mean that he did not rely on the inconsistency previously identified as ‘the reason, or a part of the reason, for affirming the decision that is under review’ within s 424A(1). The appellant was not given particulars of the information the Tribunal member discovered on the Internet during the hearing in the manner contemplated by s 424A and therefore (it was said) there was a breach of that section.

    2.The Tribunal member relied on the appellant’s ability to leave China without difficulty and this was ‘the reason, or a part of the reason, for affirming the decision that is under review’. It was said that the appellant should have been given particulars of the relevant information in the passport in the manner contemplated in s 424A. That was not done and therefore there was a breach of that section.

12. In my opinion, both submissions must be rejected. As to the first submission, although information which leads to a conclusion that there is an inconsistency between statements made by an applicant may be information within s 424A(1) (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 252 [158] per Weinberg J and at 262-263 [220]-[221] per Allsop J), I do not think that, reading the reasons of the Tribunal member as a whole, the Tribunal member used either the appellant’s statement, or the information obtained from the Internet during the hearing, or the information obtained from the Internet after the hearing, as a reason to affirm the decision under review. It is well-established that the reasons of the Tribunal are not to be read with an eye keenly attuned to the perception of error and I think in the end the Tribunal member did accept the appellant’s evidence on this point. He might have expressed himself more clearly than he did when he said that the third piece of information ‘appeared to add some authentic background to the Applicant’s claims’ but I do not think that in reaching his decision he relied on what at the hearing might have appeared to have been an inconsistency or unsatisfactory piece of evidence.

13. As to the second submission, it must be rejected because the circumstances in which the appellant left China and the inferences to be drawn therefrom fall within the exceptions to the obligation in s 424A(1) (s 424A(3)). That was the approach taken by the Magistrate and in my opinion that was the correct approach.

14. The second ground of appeal was not particularised. I have carefully read the reasons of the Tribunal and the reasons of the Magistrate, and I do not think there is any substance in this ground.

15. For these reasons, the appeal must be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       14 March 2007

The Appellant:	The appellant in person.
Counsel for the Respondent:	Mr P Carr
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	13 and 15 February 2007
Date of Judgment:	15 February 2007