SZJBX v Minister for Immigration and Citizenship

[2007] FCA 728

FEDERAL COURT OF AUSTRALIA

SZJBX v Minister for Immigration and Citizenship [2007] FCA 728

Migration Act 1958 (Cth) s 91R(3)

SZJBX v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL
NSD 426 OF 2007

DOWNES J
15 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 426 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJBX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	15 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS:

1.Appeal dismissed with 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 426 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJBX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	15 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is from the People’s Republic of China.  He is aged 43 years.  He arrived in Australia in June 2001.  He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the ground of his membership of, or participation in, Falun Gong.  His application was refused on 17 July 2001.  He lodged an appeal in the Refugee Review Tribunal on 14 August 2001.  There have been two Tribunal decisions affirming the decision to refuse a protection visa.  The first decision was made on 25 August 2002.  The appellant appealed to the Federal Magistrates Court and in March 2006 the matter was remitted by consent to the Tribunal for reconsideration.  The second Tribunal decision was made on 6 July 2006.  The appellant again appealed to the Federal Magistrates Court.  His application was dismissed on 8 March 2007.  He appeals to this court against that decision.

2. The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts.

3. The rights of persons claiming to be refugees in Australia do not, however, stop there.  For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court.  The appeal is, however, confined to an error of law amounting to jurisdictional error.

4. Behind every application for a protection visa lies a factual basis.  The factual basis in the present case is that the appellant claimed to fear persecution by Chinese authorities because of his involvement in Falun Gong.  In his visa application and original application for review, he claimed that he had been practising and organising Falun Gong, but did not provide any particulars.  At the original hearing, he claimed that he had arranged for the printing and distribution of Falun Gong promotional material in 2000, that he had gone into hiding for six months before his departure and that his house was searched and his wife questioned after he left China.  He gave similar evidence in the second Tribunal hearing.  In 2006 he lodged written statements claiming that he had been threatened by police in 1999, that he had been the subject of an adverse report in 2000 and that he had been publicly participating in Falun Gong in Australia.

5. The Refugee Review Tribunal, constituted by Ms Christine Long, did not accept that the appellant was a witness of truth. She considered that the way that he gave his evidence indicated that he was trying to remember features of prepared evidence rather than giving a truthful account of events as he recalled them. Further, while the Tribunal accepted that the appellant had been publicly involved in Falun Gong in Australia since mid-2004, it disregarded this information pursuant to s 91R(3), because it was not satisfied that this conduct was not engaged in for the purpose of strengthening the appellant’s claim to be a refugee. The Tribunal noted that the fact that the appellant did not appear to have changed either his place of residence or work was inconsistent with his claims. The Tribunal concluded that there was “no plausible evidence before it that the [appellant] was/is a genuine Falun Gong practitioner and will suffer persecution from authorities in the reasonably foreseeable future for Falun Gong practice/activities if he returns to his country”.

6. The reality of this case is that the appellant has lost it on the facts.  However, the only appeal relates to the law.  Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts.  This raises problems for the many appellants who are in a similar position to the present appellant.  However, if there is a relevant error of law an appeal will be successful.  Accordingly, I now turn to that question.

7. The notice of appeal contains the same two grounds of appeal that were agitated in the court below. The first is that the Tribunal ignored or overlooked evidence that the appellant gave in the Tribunal hearing in 2002. The second is that the Tribunal misconstrued s 91R(3) of the Migration Act. No particulars are given in relation to either ground. The appellant has not filed any written submissions. The appellant has made oral submissions to me this morning, but those submissions largely related to findings of fact which he considers should have been made. He made submissions relating to the prejudice he suffered when his migration agent disappeared and relating to the delay in his making an application as a result of misinformation given by the migration agent. However, the first matter did not impact on the second hearing before the Tribunal and the second matter relates to a question of fact which was before the Tribunal and which gave rise to no error of law.

8. I have read the reasons for judgment of Barnes FM in which she deals with the submissions which were put to that court by counsel in support of the two grounds of appeal.  I can find no error of law in the way the Federal Magistrate dealt with the arguments.  I have concluded that there was no relevant error of law made by the Refugee Review Tribunal which would lead to this court interfering and allowing the appeal.  The appeal must be dismissed and will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes

Associate:
Dated:  23 May 2007

Counsel for the Appellant:	The Appellant appeared in person with the assistance of a Mandarin interpreter
Counsel for the First Respondent:	R Pepper
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	15 May 2007
Date of Judgment:	15 May 2007