SZJGE v Minister for Immigration and Citizenship

[2007] FCA 612

FEDERAL COURT OF AUSTRALIA

SZJGE v Minister for Immigration & Citizenship [2007] FCA 612

MIGRATION - appeal from decision of Federal Magistrate - application for protection visa - whether appellant had an adequate opportunity to present his case - no jurisdictional error – no point of principle.

Migration Act 1958 (Cth), ss 424A, 425

SZJGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 2548 OF 2006

GILMOUR J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2548 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJGE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

2.The appeal be dismissed.

3.The appellant pay the costs of the first respondent, fixed at $550.00.

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 2548 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJGE
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	30 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 11 December 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 21 June 2006 and handed down on 13 July 2006.  The Tribunal had affirmed a decision of a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the appellant.

   BACKGROUND

2. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 24 September 2005.  On 7 November 2005 the appellant lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs.  On 18 January 2006 a delegate of the first respondent refused the application for a protection visa and notified the appellant of the decision and his review rights.  On 27 February 2006 the appellant applied to the Tribunal for a review of the delegate’s decision.  The appellant attended a hearing at the Tribunal on 21 April 2006 and gave oral evidence.

   CLAIMS BEFORE THE TRIBUNAL

3. In his application for a protection visa and before the Tribunal, the appellant claimed to have well-founded fear of persecution because of his anti-Chinese government party activities especially involvement in and as a practitioner of Falun Gong.

4. According to the information provided on the appellent’s protection visa application form, the appellant claimed that he had left China because his house had been ransacked and two of his group leaders were arrested and detained. The appellant then claimed that he was taken to be interrogated and threatened by the Public Security Bureau (PSB) and that after he left China, his Falun Gong books were confiscated and became ‘hard evidence’ against him. The appellant further claimed that the PSB using threats demanded that his family members report his exact whereabouts, his ‘speeches’ and behaviour and as a consequence of this, he had not been in contact with his family.  The appellant stated that if he were to return to China, he would suffer ‘much more severe persecution,’ such as arrest, detention and imprisonment. The appellant stated that the Chinese authorities (represented by the PSB), local police leaders and employees, controlled by the “one-party” communist dictatorship, would harm him if he returned to China.  The appellant claimed that he was persecuted before he came to Australia. He further claimed that he was persecuted due to his anti-party activities (especially his active involvement in Falun Gong which had developed to a high level after he came to Australia), stating that many other Falun Gong followers and practitioners had been and are being persecuted in China and that some of his fellow Falun Gong practitioners had been granted refugee status in Australia and that he wanted such protection.  He claimed that the Chinese authorities would not protect him, due to his involvement in Falun Gong within Australia. 

5. At hearing before the Tribunal on 21 April 2006, the appellant gave evidence that he practised Falun Gong in China for 2 years at a friend’s home once or twice a week, claiming that he practised Falun Gong as a form of exercise to help his back and no other particular reason. When questioned by the Tribunal as to why he stated that Falun Gong was his religion on his protection visa application, he stated that his migration agent had completed the form.

6. The appellant claimed at the Tribunal that in Australia he went to Parramatta City Council every Friday evening where he read Zhuan Falun with other people, and also stated that he had not practiced the Falun Gong exercises in Australia, but just went to Parramatta and sat outside the city council and read Zhuan Falun with others. The appellant later contradicted this, when he told the Tribunal that he performed three sets of exercises sitting down in Paramatta. The Tribunal observed that the appellant seemed to be paying little attention to what he was saying, and replied to the Tribunal’s answers according to ‘whatever came into his mind at the time,’ rather than according to the appellant’s actual personal experience. When the Tribunal suggested to the appellant that as he had stopped his practice of Falun Gong, he would not face any problems if he returned to China, the appellant stated that if he returned to China, he would not be believed even if he told ‘them’ that he had stopped practicing. 

7. When asked what problems he had experienced in the past due to his practise of Falun Gong, the appellant said that he had not had any problems in the past, but after he arrived in Australia, a friend who had been detained by the police in China had told them that the appellant had practised Falun Gong. When the Tribunal questioned the appellant about the information in his protection visa application which stated that he had been interrogated and threatened by the PSB, the appellant stated that when he was questioned he denied his involvement in Falun Gong and was released, and that it was ‘nothing’ if the police questioned people in China.

   THE DECISION OF THE TRIBUNAL

8. The Tribunal found the appellant to be a thoroughly unconvincing witness.  It found his oral evidence was delivered in a ‘diffident’ manner, that he had to be asked to answer simple questions more than once, that his responses were often extremely vague and that on other occasions, the appellant’s responses did not answer the question that was asked at all.  When asked about the first three exercises that are fundamental to the practise of Falun Gong, the appellant replied vaguely that he did not know much.  The appellant often answered the Tribunal’s questions with phrases that appeared to be rote learnt catchphrases, rather than spontaneous responses.  The Tribunal noted that the appellant at times appeared to deliberately fail to respond to simple questions put to him.

9. The Tribunal found that the appellant lacked knowledge of Falun Gong and that his evidence about the Falun Gong exercises and his Falun Gong activities in China was confused and at times changed.  The Tribunal also found the appellent’s oral evidence about his practice of Falun Gong in Australia to be confused and contradictory.  The Tribunal found the appellant was not credible and therefore was not satisfied the appellant was a Falun Gong practitioner in China or Australia or engaged in any ‘anti-party’ activities.

10. The Tribunal concluded that the appellant was not a credible witness and that he was not a Falun Gong practitioner in China, nor had he practised Falun Gong or engaged in any Falun Gong activities in Australia, and did not engage in any other “anti-party” activities in China or Australia. The Tribunal was not satisfied that the appellant was a person to whom Asutralia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol and consequently did not satisfy the relevant criteria to be granted a protection visa.

    GROUNDS BEFORE OF THE FEDERAL MAGISTRATE

11. On 21 August 2006 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The appellant raised seven grounds of contention. However, as some of these grounds were essentially factual contentions, the Federal Magistrate indicated that three contentions of law were present: the alleged failure of the Tribunal to comply with s 424A of the Migration Act1958 (Cth) (“the Act”), the appellant’s complaint concerning the relevance of independent country information and the alleged failure to comply with s 425 of the Act

    THE DECISION OF THE FEDERAL MAGISTRATE

12. The Federal Magistrate could find not jurisdictional error in the Tribunal’s decision. In relation to a claim that particulars under s 424A of the Act should have been provided in the Tribunal’s hearing letter when it was complying with s 425 of the Act, his Honour stated (at [27]) that:

    The Applicant claims that the Tribunal should have included particulars of the information and explanation in its letter, and that a failure to do so is a jurisdictional error. This submission is misconceived. It is well-established by decisions of this Court and the Federal Court that the obligation under s.424A of the Migration Act does not arise at the time that the Tribunal is considering its obligation under s 425 of the Act.

13. His Honour then discussed the nature of s 425 of the Act and found the appellant had misconceived both s 424A and s 425 of the Act. The Tribunal was not considering whether it should have affirmed the decision under review at the time that is was considering its obligation under s 425, concerning the invitation to a hearing. In relation to a contention of breach of s 424A of the Act, his Honour found the Tribunal’s decision was based on the adverse finding as to credibility which arose from the appellant’s own evidence and which fell under the exception provided by s 424A(3)(b) of the Act.

14. The Federal Magistrate turned to the contention regarding independent country information and found that it was information which fell within the exception contained in s 424A(3)(a) and that there was, accordingly, no breach of s 424A(1) of the Act. In any event, his Honour held that the independent country information formed no part of the reasons for affirming the delegate’s decision. Rather, as his Honour correctly observed, it was the appellant’s lack of credibility which underpinned the Tribunal’s decision.

15. In relation to a breach of s 425 of the Act concerning the failure to provide a proper hearing, the Federal Magistrate found no breach as the Tribunal had invited the appellant to a hearing, at which the appellant gave oral evidence; there was adequate amount of notice given; and a Mandarin interpreter was provided to the appellant. His Honour found that there was no evidence by way of the transcript or an affidavit that indicated that the appellant was unable to give evidence or present arguments, due to any interruptions by the Tribunal, the interpreter or both, and accordingly held that there was nothing in the decision of the Tribunal to indicate that the appellant did not have an adequate opportunity to present his case, there being no breach of s 425 of the Act and no jurisdictional error.

    NOTICE OF APPEAL

16. The Notice of Appeal filed by the appellant on 28 December 2006 was accompanied by an affidavit sworn by the appellant.  In combination these two documents are argumentative in large part.  However, I have been able to discern two grounds which were raised below before the Federal Magistrate.

    1. The Tribunal failed to comply with its obligations under s 424 of the Act “in respect of certain information” and, in particular, failed to provide particulars of the independent country information;

    2.The Tribunal failed to observe its obligations under s 425 of the Act.

17. The appellant also submits that his submissions before the Federal Magistrate were not given much weight.

18. By orders made in chambers by a Registrar of this Court on 22 January 2007, the appellant was directed to file and serve written submissions no later than five clear working days before the hearing date.  No such submissions have been served on the first respondent.  I have therefore directed my attention to the grounds which I have set out above, taking into account any additional issues set out in the appellant’s affidavit.

19. At the hearing of the appeal before me the appellant made no oral submissions of substance.

    REASONS

20. Having considered the findings and reasoning of the Tribunal and the Federal Magistrate below I am unable to discern any jurisdictional error.  To the contrary I am satisfied from the reasons given and to which I have referred above that his Honour correctly disposed of the grounds of appeal before him and which have been, in substance, repeated before me.

21. In my opinion there is no merit in the appeal before me and it should be dismissed and the appellant should pay the first respondent’s costs fixed at $550.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        30 April 2007

The Appellant appeared for himself:
Counsel for the Respondent:	Ms A Nanson
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007