SZIXI v Minister for Immigration and Citizenship

[2007] FCA 534

FEDERAL COURT OF AUSTRALIA

SZIXI v Minister for Immigration and Citizenship [2007] FCA 534

SZIXI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2186 OF 2006

SIOPIS J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2186 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	21 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.The Refugee Review Tribunal is joined as second respondent.

3.The appeal is dismissed.

4.The appellant is to pay the first respondent's costs, fixed in the sum of $2,500.

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 2186 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	21 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate of 17 October 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 5 April 2006 handed down on 27 April 2006.  The Tribunal had affirmed a decision of the delegate of the first respondent (“the Minister”) not to grant a protection visa to the appellant.  The appellant is a citizen of the People's Republic of China.  In his application to the delegate of the Minister, seeking a protection visa, the appellant claimed to have a well‑founded fear of persecution because he was a Falun Gong practitioner.

2. However, before the Tribunal the appellant resiled from this earlier claim, stating that his migration agent advised him to make false claims; and instead he asserted that he had a well‑founded fear of persecution on the grounds of the family planning policy in China.  The appellant claimed that heavy fines were imposed on him as he had five children, and he had left China because he could not afford to pay these fines.

   
   The Tribunal

3. The Tribunal considered the appellant's renunciation of the claims he had made before the delegate.  The Tribunal found that the appellant’s evidence, that the migration agent advised him to make false statements regarding being a Falun Gong practitioner, seemed genuine and credible.  The Tribunal accepted the statements regarding Falun Gong were false, and proceeded in its assessment of the appellant's claims, to ignore the Falun Gong claims.

4. The Tribunal found that it was more probable than not that the appellant had five children. The Tribunal then referred to s 91R(1)(b) and (2) of the Migration Act 1958 (Cth), and also to the observations of Marshall J in the case of Minister for Immigration and Multicultural and Indigenous Affairs v VBAO (2004) 139 FCR 405 at 412, at [41] that “serious harm contemplates that a person’s livelihood or well‑being will be jeopardised in a material way”.

5. The Tribunal found that in China the appellant operated his own truck as a subcontractor and was gainfully employed there until 2005 when he left the country.  The Tribunal also found that there was no evidence that the fines levied against the appellant affected him in a “material way” so as to constitute serious harm for the purpose of the Act.  In relation to the appellant's low wages, the Tribunal considered that this related to his skills rather than a breach of the one child policy.

6. The Tribunal said, at page 10 of its reasons:

   The [appellant] claimed he left China to escape payment of the fine for his last child.  The Tribunal does not see any credible basis for this claim.  Since the birth of his last child 15 years ago, the [appellant] has lived and worked in China.  It is reasonable to assume that if indeed the authorities were adversely interested in him because of his unpaid fines, they would have extracted such fines from him in the 15 years.  The [appellant] has not been able to persuade the Tribunal that his life in China for the last decade and a half has been one marked by persecution and for which reason he is unable or unwilling to return to the country.  Indeed, the evidence leads the Tribunal to conclude that while the [appellant] may well have breached the one‑child policy, he was [sic] not been subject to any measures that would constitute persecution under the Act.

7. On that basis, the Tribunal found that the appellant did not face a real likelihood of persecution on his return to China for breaches of the one child policy.

   The Federal Magistrate

8. Before the Federal Magistrate, in an application filed on 5 June 2006, the appellant sought judicial review on one ground, namely, that the “first respondent's delegate committed a jurisdictional error by relying on invalid evidence in determining [the] protection visa criteria”.  The Federal Magistrate, without objection, treated that as an allegation that it was the Tribunal, and not the delegate, that had relied upon the “invalid evidence”.  The Federal Magistrate said that it was clear from the balance of the application that this was what the appellant had intended.

9. The Federal Magistrate said that the factual findings that were made by the Tribunal were open on the evidence before the Tribunal, and that the other complaints made by the appellant at the hearing effectively sought a merits review of the Tribunal's factual findings.

10. The Federal Magistrate found that there was no jurisdictional error.  The Federal Magistrate observed, at [17] of the reasons, that:

    In my view there is evidence upon which the Tribunal's finding is firmly based.  I would comment that the Tribunal appears to have given the [appellant] the benefit of the doubt as far as his claim for fear of persecution because of breach of the one child policy is concerned.  This claim only emerged at the Tribunal hearing after the [appellant] admitted that he had followed the agent’s erroneous advice to make a false claim of persecution on the ground of being a Falun Gong practitioner.  The Tribunal accepted his explanation and has made no adverse credibility findings against the [appellant].  What the Tribunal has done is consider that the [appellant] may well have five children and has been subject to fines in respect to the birth of some of them, but on the basis of the last child having been born some 15 years before the [appellant] left China, the [appellant] and his family have managed to survive without significant economic hardship that threatens their capacity to subsist.

11. The Federal Magistrate also said that he was mindful of the fact that the appellant was not legally represented and that he had read through the decision of the Tribunal himself, independently, in order to ascertain whether any jurisdictional error might be disclosed and that he was not able to find any.

    The appeal

12. Before me the appellant relied on a notice of appeal filed 6 November 2006, which comprised the following grounds:

    (1)The Tribunal relied on invalid evidence in determining the protection visa criteria;

    (2)The Tribunal had bias against me and failed to consider my claims for my application for a protection visa;

    (3)The Tribunal failed to assess the chance of persecution on my return to China;

    (4)[The] Federal Magistrates Court failed to consider my application for review and could not find any error with the RRT.

13. I have treated grounds 1, 2 and 3 as being contentions that the Federal Magistrate erred in failing to make the findings referred to in paras 1, 2 and 3 of the grounds.

14. As to ground 1, in my view, the Federal Magistrate was correct in concluding that there was no jurisdictional error in the manner in which the Tribunal came to the findings that it did on the facts.  It was plainly open on the evidence, for the Tribunal to come to the view that it did, at page 10 of its reasons, that if, indeed, the authorities were adversely interested in the appellant because of his unpaid fines, they would have extracted such fines from him in the last 15 years; and that the Tribunal was not persuaded that the appellant’s life in China for the last decade and a half has been one marked by persecution leading to his being unable or unwilling to return to the country.

15. The Tribunal also referred to the fact that the appellant had been gainfully employed in China until 2005 when he left the country.  He operated his own truck as a subcontractor and worked at all material times until late 2005 when he left China to come to Australia.

16. Accordingly, in my view, the Federal Magistrate did not err in finding that there was no jurisdictional error in the manner in which the Tribunal assessed the facts, and that the Tribunal’s findings were open on the evidence.

17. The second of the complaints made in the notice of appeal is that the Tribunal was biased against the appellant and, impliedly, that it did not afford the appellant a lawful review.  This complaint was not, on the face of it, a complaint that was made before the Federal Magistrate.  This complaint was made without any particulars of bias being furnished, either in the notice of appeal or before me today.  Where a party seeks to allege bias that allegation must be well particularised and must be supported by evidence.  There is no evidence that the Tribunal exhibited any bias towards the appellant.

18. As to the implicit complaint that the Tribunal did not afford the appellant a lawful hearing, the appellant again failed to support this complaint with evidence.  There was, therefore, no evidence upon which it was open to the Federal Magistrate to conclude that the Tribunal had not given the appellant an opportunity to make his case.  In the absence of any evidence of bias or a failure to provide a lawful hearing, I decline leave to the appellant to raise ground 2 as part of the appeal.

19. In any event, the Tribunal's reasons show that the Tribunal, in fact, did put to the appellant the difficulties that it had in relation to his claim that he was likely to be pursued by the authorities in China regarding the fine owed in respect of his last child.  There is, at page 6 of the Tribunal's reasons, the following passage:

    The Tribunal asked the [appellant] how much he was asked to pay after his last child was born as a result of the failed sterilisation.  He said he was asked to pay 20,000 RMB but that he could not pay because he had no money.  The Tribunal then asked him what happened.  He said he left China and came to Australia.  The Tribunal then put it to the [appellant] that his last child was born 15 years ago and so it does not seem plausible that he could have had problems in recent times because of a fine which would have been imposed on him following the birth of his child as he claimed.  He said that the authorities wanted him to pay the money and so he left the country, as he could not pay.

20. The remaining two grounds of appeal are non-specific, and amount, in substance, to an impermissible attack on the merits of the decision of the Tribunal, which the Federal Magistrate found was made without jurisdictional error.  These grounds of appeal are without substance.  Plainly, the Tribunal assessed the appellant’s claims and rejected them on their merits, and the Federal Magistrate did not err in coming to that view.  I dismiss those grounds of appeal.

21. Before me today the appellant also contended that the Tribunal had failed to comply with s 424A of the Act.  During argument I asked the appellant to elaborate upon the basis for that contention, and specifically, what information he said the Tribunal failed to refer to him for comment.  He responded by saying:  “It simply did not accept my refugee application”.

22. In my view, that does not disclose any failure by the Tribunal to comply with s 424A of the Act.  That section is specific in relation to the nature of the information which must be notified to an applicant for a visa.  Insofar as the appellant may have been suggesting that the Tribunal did not advise him that it intended to dismiss his application on the grounds that it was implausible, or that parts of it were implausible, that would not have fallen within the ambit of that section because there is no obligation on the Tribunal to advise of its determinations or subjective thought processes.  Insofar as his contention may have been that the Tribunal did not disclose to him the information, that it had relied on in its reasons, that he was gainfully employed until 2005, that evidence was evidence which was given by the appellant himself, and as counsel for the first respondent has submitted, falls within the exception under s 424A(3)(b) of the Act.

23. Accordingly, I do not find that there was a failure by the Tribunal to comply with s 424A of the Act.

24. I dismiss the appeal.

I certify that the preceding twenty‑four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       13 April 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr D Jordan
Solicitor for the  First Respondent:	Blake Dawson Waldron
Date of Hearing:	21 February 2007
Date of Judgment:	21 February 2007