SZIVJ v Minister for Immigration and Citizenship

[2007] FCA 320

FEDERAL COURT OF AUSTRALIA

SZIVJ v Minister for Immigration and Citizenship

[2007] FCA 320

SZIVJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1792 OF 2006

LINDGREN J
19 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1792  OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	19 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)The name of the first respondent be altered 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 1792 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVJ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	19 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a decision of the Federal Magistrates Court of Australia given on 31 August 2006 ([2006] FMCA 1376). On that date that Court dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was signed on 29 March 2006 and handed down on 11 April 2006. The Tribunal affirmed a decision of a delegate of the first respondent (respectively ‘the Delegate” and ‘the Minister’), not to grant a protection visa to the appellant. The Tribunal has entered a submitting appearance.

2. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 28 August 2005 and applied for a protection visa on 12 October 2005.  On 30 November 2005 the Delegate refused to issue a protection visa.  That decision prompted the appellant to lodge an application with the Tribunal on 22 December 2005. 

3. In short, the appellant’s claims before the Tribunal were that although he was not a Falun Gong practitioner himself, he was involved in an arrangement to set up a business through which funds donated to promote and assist Falun Gong practitioners could be funnelled.  He claimed that the Chinese authorities discovered his involvement after he left China.  He said that he feared that he would be detained and arrested by them if he were to return.

4. The appellant said that he married in 1998 and that his wife and daughter are still living in China.  Prior to departing from China, he lived at an address in Longtian Town, Fujian Province, which was where he was born and grew up. The appellant travelled to Australia on a Chinese passport and entered Australia on a visa issued in Guangzhou on 12 August 2005. 

5. The Tribunal accepted that the appellant conducted his own clothing shop business from 1996 to 2000, and that he employed in that shop, relevantly,  two individuals who may have been Falun Gong practitioners, and who may have been of interest to the authorities.  The Tribunal accepted that between 1997 and 2000, the appellant may have been questioned by the police on a number of occasions about the activities of those two individuals.  The Tribunal did not accept, however, that the business had closed because customers were scared off by police visits on five to six occasions between 1997 and 2000; nor did the Tribunal accept that the appellant was employed as a business manager for the Guangming Advertisement and Decoration Company between 2001 and his departure from China in 2005.

6. The Tribunal accepted that the appellant set up another clothing shop called “Black Rose” in 2004 in which he sold general clothing and garments.  It was in respect of the establishment of this shop that the appellant’s claim to have a fear of persecution arose.  His claim was that the purpose of the establishment of this shop was that funds donated by Falun Gong practitioners overseas could be paid into the shop’s business and then funnelled out and used for the printing of Falun Gong materials.  The presiding member challenged the appellant in relation to his account of the circumstances in which the shop was established.  He claimed that one of the two individuals had handed over cash to him to enable him to establish the business by paying rent and buying stock. 

7. The Tribunal did not accept that the appellant, not himself a Falun Gong practitioner, fulfilled the role that he suggested.  Ultimately the appellant’s claim before the Tribunal was, in effect, that he had put his own safety at risk and worked in the shop for no financial reward because he did not agree with the Chinese authorities’ repression of religious freedom, at least in the case of his two former employees.

8. Another claim which the Tribunal rejected was that the appellant’s brother, who lived in Australia and visited China in January 2006, had, on the occasion of that visit, been questioned by the police concerning the appellant.  The Tribunal noted that the brother had not attended the hearing to give evidence to support the appellant’s claims because he was busy at work. 

9. The appellant provided to the Tribunal a photocopy of what purported to be a summons, the original of which, according to the appellant’s evidence before the Tribunal, had been handed to the appellant’s brother on the occasion of his visit to China in January 2006.  The document purported to require the appellant to attend on a date in September 2005.  The Tribunal noted that the summons gave no particulars of the reasons for the issue of it.  The Tribunal referred to country information to the effect that false documents are easily obtainable in China.  The member also thought it odd that the authorities, who were well aware in January 2006 that the appellant had previously left China, would give the document to the appellant’s brother.

10. For these various reasons the Tribunal placed no weight on the photocopy of the “summons.”

11. The Tribunal’s conclusion was that the appellant and his family had been subject to some financial stress in China and that the appellant has sought to remain in Australia in order to improve their financial position.  The presiding member did not accept that the financial difficulties were Convention related.  It considered that the appellant’s claims had been fabricated in order to achieve a migration outcome. 

12. In his notice of appeal to this Court, the appellant states simply as his grounds of appeal that the Federal Magistrates Court “erred in law” and “was wrong in finding that the Refugee Review Tribunal acted properly in its findings.”  The appellant has not provided written submissions in support of his appeal. 

13. The grounds dealt with by the Federal Magistrate were six in number.

    1.Suggested non-compliance with s 425 of the Migration Act 1958 (Cth) (‘the Act’). The argument of the appellant was understood by the Federal Magistrate to be that the Tribunal was obliged to afford to him an opportunity of responding to the “negative issues” or “negative views” raised by the Tribunal in its reasons for decision, before it made a determination. If this is, indeed, a correct understanding of the appellant’s argument, it would result, as his Honour observed, in the anomaly that the course of affording opportunity to comment would be never-ending.

    There was, in any event, in evidence before the Federal Magistrate a copy of the transcript of the proceeding before the Tribunal and in fact the Tribunal took up with the appellant all issues in relation to which the Tribunal ultimately made an adverse finding of fact against him. His Honour was correct to reject the argument that there had been a non‑compliance with s 425 of the Act.

    2.Suggested non-compliance with s 424A of the Act. Apparently the appellant’s case before the Federal Magistrate in this respect was that the Tribunal had not given to the appellant particulars of country information on which the Tribunal ultimately relied as part of its reasons for affirming the Delegate’s decision. However, s 424A(3)(a) provides that the obligation imposed on the Tribunal by the section does not apply to information 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. Independent country information falls into this category.

    3.The Tribunal’s failure to call the appellant’s brother.  The Federal Magistrate pointed out that the appellant had, in the presence of his migration agent, signed a “Response to Hearing” invitation indicating that he did not wish any other person to be called to give evidence.  It was not incumbent on the Tribunal to call the appellant’s brother.

    4.Suggestion that the Tribunal’s decision was “incorrect” and “unfair.”  The Federal Magistrate characterised this contention as a challenge to the Tribunal’s factual findings.  There was no jurisdictional error in the present respect.  The Tribunal’s factual findings were largely based on its rejection of the appellant’s credibility – a matter which is at the heart of the Tribunal’s function. 

    5.Suggestion that the Tribunal should have obtained expert evidence. This complaint related to the photocopy summons which the appellant had provided to the Tribunal. The Federal Magistrate observed that while s 424 of the Act empowers the Tribunal to get any information it considers relevant, it does not oblige the Tribunal to gather all information that might be considered relevant. The appellant also claimed that the Tribunal did not give any substantial reasons for rejecting his claims. It did. The Tribunal does not need to have opposing evidence before being entitled to find that a particular claim is implausible or is otherwise not established.

    6.Suggestion of bad faith and bias.  The Federal Magistrate properly said that there was no evidence whatsoever of bad faith or bias on the part of the Tribunal. 

14. In the result, the appellant has not established any error in the reasons of the Federal Magistrates Court and the appeal should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:        8 March 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Mr M Izzo
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2007
Date of Judgment:	19 February 2007