SZIUL v Minister for Immigration and Citizenship
[2007] FCA 1423
•13 August 2007
FEDERAL COURT OF AUSTRALIA
SZIUL v Minister for Immigration and Citizenship [2007] FCA 1423
SZIUL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 649 OF 2007GRAHAM J
13 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 649 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIUL
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
13 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent Minister’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 649 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZIUL
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
13 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant, who is identified for the purpose of these proceedings as SZIUL, was born in Liaoning in the People’s Republic of China on 4 November 1959. He obtained a passport from the People’s Republic of China on 10 May 2005 which was due to expire on 9 May 2010. On or about 30 August 2005 he obtained a class UL, sub-class 459 Australian visa, being a sponsored business visitor (short stay) visa.
Travelling on his Chinese passport, the appellant arrived in Australia on 11 September 2005. On 18 October 2005, he lodged an application dated 1 October 2005 whereby he sought the grant of a Protection (Class XA) visa.
On 2 November 2005, he notified the then Department of Immigration and Multicultural and Indigenous Affairs of a change of address. On 23 December 2005, his application was refused by a Delegate of the Minister. On 27 January 2006, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister’s Delegate’s decision. By a letter dated 2 February 2006, the appellant was invited to attend a hearing before the Tribunal. On 13 February 2006 he responded to the invitation, indicating that he wanted to attend the appointed hearing. On 3 March 2006, the appellant appeared before the Tribunal constituted by Ms McIntosh. On the same day, the Tribunal wrote to the appellant providing particulars of information upon which he was invited to comment.
Much of the information related to inconsistencies between what the appellant had said in evidence, orally, before the Tribunal and what had been said by him in his application for a protection visa. The Tribunal drew the matters to the appellant’s attention because:
‘… they cast doubt on the plausibility of your claim to have been a Falungong practitioner or to have been of any adverse interest to the authorities in China.’
The letter inviting comment indicated that comments should be provided by 28 March 2006. On that day, the appellant responded to the Tribunal’s letter.
On 30 March 2006, the Tribunal decided to affirm the decision of the Minister’s Delegate not to grant a protection visa to the appellant. By a letter dated 31 March 2006, the appellant was invited to the handing down of the decision which occurred on 20 April 2006.
By an Application filed 8 May 2006, in the Federal Magistrates Court of Australia, the appellant sought judicial review in respect of the decision of the Tribunal. The grounds specified in that Application asserted error on the part of the Tribunal in failing to accept two matters of fact. It was asserted that the Tribunal fell into jurisdictional error in failing to accept those matters of fact. Plainly, such an Application seeking a merits review could not have succeeded. However, before the matter came on for hearing in the Federal Magistrates Court on 13 February 2007 an Amended Application was apparently filed on 14 August 2006. That Amended Application contained the following ground:
‘1. The Tribunal constructively failed to exercise its jurisdiction.’
Particulars of that ground were provided as follows:
‘It failed to take into account a relevant consideration, namely that the applicant’s written statement was contemporaneous with his application for a protection visa.’
It is difficult to properly comprehend the ground relied upon before the Federal Magistrate without turning to written submissions which were relied upon before the Federal Magistrates Court and which were apparently prepared for the appellant by a panel lawyer under a Court-sponsored legal advice scheme. These submissions were summarised by Lloyd-Jones FM in his reasons for judgment of 5 April 2007 (SZIUL v Minister for Immigration [2007] FMCA 475) at [12]-[17] as follows:
‘12. … In those submissions, it is submitted under the heading ‘Grounds of Review’, that the Tribunal erred by failing to take into account a relevant consideration, namely that the applicant’s written statement was contemporaneous with his application for a protection visa. It is submitted this error resulted in the Tribunal failng to consider the essence of the applicant’s claim and, therefore, constructively failing to exercise its jurisdiction. The reasons of the Tribunal reveal that it misunderstood the evidence before it in relation to the applicant’s brother. The question of whether the applicant had a brother arose because the applicant did not list his brother when applying for a protection visa. However, the applicant’s statement, which is attached to his protection visa application lodged on 18 October 2005, expressly mentions his brother and the claims in his statement are consistent with the claims made before the Tribunal.
13. In the applicant’s written submission, it is argued that the Tribunal's view that the applicant's claim regarding his brother developed after his original application for a protection visa can be seen from the following statements:
I put to him that he had not listed his brother in the application for a protection visa as being a member of his family …(CB 71)
In the Protection Visa application form, you did not list a brother as a member of your family, although you now claim that it is because of a brother that you have had problems with the Public Security Bureau. You have submitted no evidence that you have a brother. (emphasis added)(CB 73)
In its summary of the applicant's response to the Tribunal it states:
As to why he did not list a brother as a member of his family, but now claimed that it was because of a brother that he had had problems with the PSB... (emphasis added)(CB 74)
Under the heading, ‘Findings and Reasons’, the Tribunal refers to the applicant's claim regarding his brother, then states:
...Despite being asked to list his close relatives on the protection visa application form, he did not refer to a brother. He has provided an explanation for that. However, he has since failed to provide any documentary evidence that he has a brother, despite being advised by the Tribunal of the significance of a failure to do so.(CB 75)
14.It is submitted for the applicant, that these comments were made despite the Tribunal's express reference at CB 68-69 to the written statement that accompanied the applicant's application for a protection visa. This contained his claim regarding his brother, and the fact that during the hearing, the applicant brought that written statement to the Tribunal's attention when the matter was raised. It is submitted that in the circumstances, where the Tribunal found that the applicant did not have a brother (CB 75) after constantly referring to the fact that his claim of a brother was not in the original application, the fact that the statement was contemporaneous with the application for a protection visa was a relevant consideration.
15.It is submitted on behalf of the applicant that the Tribunal's error was jurisdictional in character. A factual error may constitute jurisdictional error in circumstances where the Tribunal identified a wrong issue, ignored relevant material, or relied on irrelevant material, in such a way as affects the exercise of its powers: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]-[84]. See also Craig v State of South Australia (1995) 184 CLR 163 at 179. Similarly, in NABE v Minister for Immigration (No.2) (2004) 144 FCR 1, the Court said, at [63]:
...It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error...
16.It is submitted on behalf of the applicant that, in the applicant's case, the Tribunal misunderstood that he claimed to have a brother in his original application. It made a preliminary finding that he did not have a brother, which meant that the Tribunal did not address whether he feared persecution from the police for harbouring a relative that had been imprisoned for his political beliefs. This was the essence of the applicant's claim. Fear of persecution is an essential integer of assessing whether the applicant had a well-founded fear of persecution for a Convention reason. Failing to address that aspect because of an earlier error would, therefore, affect the exercise of the Tribunal's powers. It is true that the Tribunal found that the applicant intended to travel out of the PRC for reasons unrelated to a fear of persecution, and that this was consistent with evidence that he continued to go to his workplace and live at his home address until leaving for Australia. At first glance, those findings may give rise to the argument that the Tribunal implicitly expressed that it was not satisfied the applicant feared persecution independently of any findings in relation to his brother.
17.It is submitted, however, the fact is that the Tribunal did not go on to make an independent finding in relation to any fear the applicant may have had. Instead, the Tribunal's ultimate findings included the following statement:
...I am not satisfied that he was or is of any adverse interest to the PRC authorities for reasons relating to a family member, either because that relative was a Falungong practitioner or because that relative was wanted by the authorities for any other reason listed in the Convention.(CB 76)
This must be taken to be a reference to the applicant's brother, as there is no reference to the applicant's mother (the only other relative claimed to have been in trouble with the authorities) anywhere else in the section headed ‘Findings and Reasons.’ Given that reference, there is no basis for arguing that the decision was not based in some way on the finding regarding the brother's existence, even if other findings formed part of the Tribunal's reasoning in relation to the applicant's fear of persecution. For these reasons, the Tribunal erred in taking into account an erroneous fact when stating that it was not satisfied that the applicant had a brother, and such finding distracted the Tribunal from answering a question critical to the exercise of its power. Accordingly, the Tribunal's decision is vitiated by jurisdictional error.’
Counsel for the respondent Minister submitted that the appellant’s argument failed at the outset because there was nothing to suggest that the Tribunal considered that the statement and application were not contemporaneous. I agree with this proposition.
Counsel for the respondent also submitted that the fact that a brother was not mentioned in the formal parts of the protection visa application was simply one of a number of factors that the Tribunal took into account in finding that the appellant did not have a brother. The respondent Minister submitted that the Tribunal did not believe the appellant’s claim that he had a brother for several reasons and that the factual conclusion that he did not have a brother was open to the Tribunal. The learned Federal Magistrate was satisfied that the ground of review contained in the Amended Application could not be sustained. He concluded that it was not apparent that any other jurisdictional error existed. Accordingly, he dismissed the application and ordered the appellant to pay the respondent Minister’s costs and disbursements of and incidental to the application.
The appellant has appealed from the decision of the learned Federal Magistrate by a Notice of Appeal filed 16 April 2007. That Notice of Appeal contains the following grounds:
‘1.The Federal Magistrate Lloyd-Jones found (at [19]) that “Mr Reilly, for the respondents, also filed written submissions, which hw (sic) indicates to the Court he would rely upon. It was submitted that the Tribunal rejected all of the applicant (sic) substantive claims. This is because it was not satisfied the applicant, or any members of his family, was a Falun Gong practitioners (sic), or even he had a brother or was of any interest to the PBC (sic) authorities.” The Federal Magistrate Lloyd-Jones upheld Mr Reilly’s view whose view didn’t tally the applicant’s actual situation. The Federal Magistrate Lloyd-Jones erred in making this finding.
2.The Federal Magistrate Lloyd-Jones found (at [19]) that “The Tribunal noted implausibilities and contradictions in the applicant’s claims for coming to this conclusion.” The Federal Magistrate Lloyd-Jones agreed with the Tribunal’s conclusion. The Federal Magistrate Lloyd-jones (sic) erred in making this finding.’
It may be observed that the grounds of appeal once again seek to challenge findings on matters of fact rather than raising matters that may constitute jurisdictional error.
Section 65 of the Migration Act 1958 (Cth) (‘the Act’) provided:
‘65(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.’
The criteria prescribed by the Act for a protection visa are to be found in s 36(2) of the Act, which provided as follows:
‘36(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …’
The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as ‘the Refugees Convention’) defines a refugee as a person who:
‘… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …’
It will be appreciated that the Refugees Convention does not provide for persons to qualify as refugees for reasons such as a fear of persecution for having harboured a criminal. In the appellant’s application for a protection visa he answered questions 40-44 by referring to an attached statement. The relevant questions were:
‘40.Why did you leave that country?
41.What do you fear may happen to you if you go back to that country?
42.Who do you think may harm/mistreat you if you go back?
43.Why do you think this will happen to you if you go back?
44.Do you think the authorities of that country can and will protect you if you go back? If not, why not?’
The appellant’s attached statement did not record a fear of being persecuted for any reason identified in the Refugees Convention. It did identify the appellant’s father, who was apparently, then, deceased, his mother and his brother as being members of Falun Gong. In respect of himself, the appellant said:
‘Influenced by them, I often joined their practicing activities.’
He referred to sentences of imprisonment being imposed upon his mother and brother, of his father becoming seriously ill and of his brother and mother being tortured. He mentioned that his brother escaped from prison and whilst wanted by the government was sent money and goods by the appellant. The appellant said that on 23 August 2005, his brother returned secretly to see his father but was arrested by the police. Information was then said to have reached the appellant that he was being investigated and that the Security Bureau intended to accuse him of ‘harboring criminal’.
The Tribunal in its reasons for decision drew attention to the fact that there appeared to be no Convention reason for the harm which the appellant feared. It said:
‘… Harbouring a criminal was an offence unrelated to the Convention in his case. …’
To which the appellant apparently responded that:
‘… he had also sent back two CDs and his mother had told him they were intercepted, so that would affect how he was treated. I asked him if he had any documentary record that he had sent such a parcel to China and he said that he had not because a friend had sent if for him …’
In this context, much of the Tribunal’s consideration of the matter related to the appellant’s credit. That the Tribunal had concerns in relation to the appellant’s application was evident from its letter to the appellant of 3 March 2006, which drew attention to a number of inconsistencies and said:
‘These matters are relevant to the review because they cast doubt on the plausibility of your claim to have been a Falungong practitioner or to have been of any adverse interest to the authorities in China.’
It is true that in the original application for a protection visa, the appellant had identified his wife and son as members of his family unit who were not in Australia and who were residing in the People’s Republic of China and that in relation to ‘close relatives’ who were not in Australia at the time of the application, he identified his father and his mother but not his brother. However, it is clear that in the accompanying statement to which reference has been made, a brother whose name was provided was mentioned.
The Tribunal was not satisfied that the appellant was a genuine Falun Gong practitioner. It was not satisfied that the appellant’s father died on the day that the appellant’s brother came home after being in hiding from the authorities. The Tribunal was not satisfied that the appellant had a brother. The Tribunal was not satisfied that the claim made by the appellant that he had been assaulted in 2003 was truthful. The Tribunal also doubted the plausibility of the appellant in respect of the appellant’s claim that he did not personally know the individual described as ‘some friend from Security Bureau’ who told the appellant that he was being investigated and that ‘they’ intended to accuse the appellant of harbouring a criminal.
The Tribunal concluded:
‘For the above reasons I am not satisfied that [SZIUL] was or is a Falungong practitioner, nor am I satisfied that any member of his family was or is a Falungong practitioner. I am not satisfied that he was or is of any adverse interest to the PRC authorities for reasons relating to a family member, either because that relative was a Falungong practitioner or because that relative was wanted by the authorities for any other reason listed in the Convention.’
The Tribunal continued:
‘He does not have a well-founded fear of Convention-related persecution.’
Given the implausibilities to which the Tribunal referred it was open to it to reach the conclusion that it was not satisfied that the criteria for a protection visa had been satisfied. Any misunderstanding on the part of the Tribunal in respect of mention being made of a brother in the appellant’s application for a protection visa could not have relevantly affected her conclusions. It plainly reached its ultimate conclusion entertaining the possibility that a relative of the appellant may have been wanted by the authorities.
It is not permissible for this Court to address the matter on the merits.
No relevant jurisdictional error has been identified by the appellant. Accordingly, the appeal should be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 11 September 2007
The Appellant appeared in person. Solicitor for the First and Second Respondents: L Gazi of Australian Government Solicitor Date of Hearing: 13 August 2007 Date of Judgment: 13 August 2007
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