SZJJU v Minister for Immigration and Citizenship

[2007] FCA 726

FEDERAL COURT OF AUSTRALIA

SZJJU v Minister for Immigration and Citizenship [2007] FCA 726

Migration Act 1958 (Cth) ss 91R, 424A

SZJJU v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL
NSD 456 OF 2007

DOWNES J
14 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 456 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJJU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	14 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS:

1.The Refugee Review Tribunal is joined as Second Respondent. 

2.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 456 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJJU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWNES J
DATE:	14 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is from the People’s Republic of China.  He is aged 36 years.  He arrived in Australia in February 2006.  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 27 March 2006 and that decision was affirmed by the Refugee Review Tribunal on 1 August 2006.  The appellant appealed to the Federal Magistrates Court.  His application was dismissed on 6 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 suspected or actual involvement in Falun Gong.  The appellant claimed that he was detained and tortured in late 2002 because of his suspected involvement in Falun Gong.  This triggered his interest and in 2003 he began to secretly practice Falun Gong.  He became the subject of investigation again in 2005.  He was detained and his truck was taken from him some six months before he came to Australia.

5. The Refugee Review Tribunal, constituted by Mr Giles Short, was not satisfied that the appellant was or ever had been a Falun Gong practitioner.  The Tribunal found that the appellant was not a credible witness because, when asked at the hearing, he was unable to perform certain meditation exercises and he incorrectly identified the location and behaviour of the ‘Falun’ as taught by the founder of Falun Gong, Li Hongzhi.  As a result, the Tribunal did not accept any of the appellant’s evidence regarding his treatment in China and determined that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

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 three grounds of appeal. No particulars are given of any of the grounds. The first ground asserts that the Tribunal failed to comply with s 424A of the Migration Act. No relevant information claimed not to have been disclosed is specified. The Tribunal’s reasons were based both on information that the Tribunal sourced from websites about Falun Gong and the appellant’s own evidence. This information falls within the exceptions to s 424A in paras (3)(a) and (3)(b) respectively. In any event, the ground of appeal as framed actually asserts failure to notify the reasons for decision. In the way the appellant in the hearing before me this morning explained this ground, it seems that he is asserting that there was some obligation on the Refugee Review Tribunal to provide him with some draft of its proposed findings for him to consider. That is not how s 424A operates. There is accordingly no substance in the claim under s 424A.

8. The second ground of appeal is that the Tribunal failed to comply with s 91R of the Migration Act. This section does not address the way the Refugee Review Tribunal should go about assessing claims before it, but contains provisions relating to the way the Refugees Convention should be construed. No such issues relevantly appear to me to arise in the present case. This is particularly because the Refugee Review Tribunal found that the appellant’s account of his activities should not be accepted.

9. The third ground is simply that the Federal Magistrates Court failed to find jurisdictional error in considering similar grounds to the grounds that are presently before this court.  The appellant did not file any written submissions.  This morning I invited him to make oral submissions in support of his appeal.  He put a number of matters to me.  These matters were broadly based on the grounds of appeal and the affidavit in support of the appeal.  Like those grounds they lack specificity.  One of the grounds not covered in the notice of appeal but dealt with in both the affidavit and the oral submissions this morning is bias.  There is no substance in that claim.  An associated claim made by the appellant in the affidavit and the oral submissions this morning is that the Tribunal failed to consider his claims.  Because the Tribunal did not accept the claims there is no basis on which the Tribunal should address them as if they were true.

10. I have read the reasons of the Refugee Review Tribunal and the reasons for judgment of Driver FM in the Federal Magistrates Court.  I can find no error of law in either decision.  It follows that the appeal must be dismissed and will be dismissed with costs.

I certify that the preceding ten (10) 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
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	14 May 2007
Date of Judgment:	14 May 2007