SZJML v Minister for Immigration and Citizenship
[2008] FCA 1063
•18 July 2008
FEDERAL COURT OF AUSTRALIA
SZJML v Minister for Immigration and Citizenship [2008] FCA 1063
Migration Act1958 (Cth)
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 230 ALR 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2002) 110 FCR 27
Abebe v Commonwealth of Australia [1999] HCA 14;(1999) 197 CLR 510
SZBYR v Minister for Immigration & Citizenship [2007] HCA 16;(2007) 81 ALJR 1190;
SZDTZ v Minister for Immigration [2007] FCA 1824
SZJML v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD2453 OF 2007
REEVES J
18 JULY 2008
DARWIN
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2453 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJML
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
18 JULY 2008
WHERE MADE:
DARWIN
THE COURT ORDERS THAT:
The appeal be dismissed.
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
NSD2453 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJML
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
18 JULY 2008
PLACE:
DARWIN
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal against a judgment of Federal Magistrate Barnes delivered on 29 November 2007, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 12 September 2006. It affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.
BACKGROUND – SUMMARY OF FACTS
The appellant is a citizen of the Peoples Republic of China (‘China’) who arrived in Australia on 18 August 2004. He applied for a protection visa one week later, on 26 August 2004, on the basis of his alleged persecution in China as a Falun Gong practitioner. That application was refused by a delegate of the first respondent on 10 September 2004 and the appellant applied to the Tribunal to review that decision.
The Tribunal differently constituted (‘the previous Tribunal’) affirmed the decision of the delegate on 5 January 2005. However the appellant’s application was subsequently remitted to the Tribunal for reconsideration, by order of Justice Jacobson. That Order, dated 3 May 2006, noted that the remittal was made because the previous Tribunal “made positive findings regarding the [appellant’s] claim without complying with s 424A(1) [of the Migration Act 1958 (Cth) (‘the Act’)] contrary to SZEEU v MIMIA [2006] FCAFC 2”.
The appellant attended a hearing before a newly constituted Tribunal (‘the current Tribunal’) on 2 August 2006 and gave evidence and tendered his passport. He had not provided any materials to the previous Tribunal. He provided a statement in support of his visa application which set out his claims for protection. That statement reads as follows:
I was introduced to be a “Falungong” member in 1997. At the beginning, I practiced Falungong for my health. I experienced the improvement of my health after six months practicing Falungong. Gradually, together with other members, we became to believe that Falungong is not only for health, but it has also become our religious belief. We got together every Sunday, just like other religious believers. We discussed about Falungong and practiced Falungong together. We promoted Falungong to other colleagues in the factory and neighbours. We were very happy that we could practice Falungong together. In 1999 when Chinese government cracking down “Falungong”, local police came to members’ homes to search evidence. I was found to have the membership cards and other promotion leaflets. I was detained for 5 days, and was forced by the police to disclose other members’ details and the details about the membership. After I was released, I was forced to leave the company I worked for with less than one-third of the full amount of my salary until I could find another job. From then on, I actually lost my job; I could only live on that little money from the company without working. I was surviving anyway, but I lost everything, my freedom and colleagues and any other opportunity. I realized that local police was supervising me I could not enjoy basic human rights and freedom of religion in China. I decided to leave China for my freedom and religious belief. I will be persecuted in China.
THE CURRENT TRIBUNAL’S DECISION
Before the current Tribunal, the appellant claimed that he has a wife, two children and three other dependants in China. He claimed that his wife became ill with schizophrenia after police destroyed her chickens (approximately 1000) at the time of the bird flu epidemic in China. He also claimed the police had only destroyed chickens owned by those people who were known to have practised in Falun Gong.
The appellant stated that he practised Falun Gong openly from 1997 until 1999, when the Chinese government banned it, and then he practised at home ‘from time to time’. He also stated that he now practises occasionally in the Chinese Gardens in Sydney. He was able to accurately answer most of the current Tribunal’s questions about the background and nature of Falun Gong.
According to the appellant, Public Security Bureau (‘PSB’) officers searched his home in 1999, because they had obtained “some evidence from other people” about his practice of Falun Gong. He claimed they seized “my membership card and some pamphlets”. He maintained this claim even after the current Tribunal put to him that Falun Gong does not have membership lists or cards.
The appellant claimed that he had been detained and tortured by the PSB for several days and only released when he started to bleed from the head. He stated that since that incident he has had ongoing health problems. He claimed he was forced to denounce the practice of Falun Gong and was required to “report” to the PSB every three to five days. The current Tribunal asked the appellant what it was in 2004 that made him decide he had to leave China and the appellant responded that: “I could not find a job [after 1999]. I could not live in China”.
In response to questions from the current Tribunal, the appellant stated that he had employed a people smuggler to obtain a passport and visa for him, in his name. He said that his passport was stamped “replacement” because he had previously lost a passport in China. He stated that the people smuggler had even arranged his application for a protection visa. He also stated that he continued to fear harm in China because the local authorities had been coming to his home every eight to ten days and ‘were always making trouble’.
The current Tribunal accepted that the appellant may have had economic difficulties since 1999 but it did not accept that the appellant had practised Falun Gong in China, at least after 1999, nor in Australia, based on the lack of detail in the appellant’s evidence. Similarly, the current Tribunal did not accept that the appellant “had been detained or mistreated in 1999 because authorities found Falun Gong membership cards, lists and pamphlets at his home” because independent country information indicated that “Falun Gong practice is a ‘cultivation practice’ open to all persons and there is no need to register or join an organisation”. The current Tribunal surmised that the appellant was unaware of this aspect of Falun Gong and that he had therefore fabricated this evidence to support his claims of mistreatment.
Though it accepted that the appellant may have used a people smuggler, the current Tribunal found that the fact that the appellant left China on a passport in his own name supported its conclusions that the appellant “has never been a regular or committed Falun Gong practitioner and has not been mistreated by authorities or forced out of work for this reason”. Finally the current Tribunal found that “[a]s there is no reliable evidence…to support this claim I cannot be satisfied that the family’s livestock were destroyed for a Convention reason”.
Accordingly, the current Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention-related reason and that he failed to meet the criterion for a protection visa. The current Tribunal therefore affirmed the delegate’s decision.
THE FEDERAL MAGISTRATE’S DECISION
The appellant filed an amended Application for judicial review supported by an Affidavit in the Federal Magistrates Court on 5 March 2007. The amended application raised two grounds for review which can be summarised as follows:
The Tribunal was biased and disbelieved the appellant’s claims on the basis of assumption; and
The Tribunal failed to notify the appellant in writing of the reason or part of the reasons for affirming the delegate’s decision within the terms of s 424A of the Act, and the decisions in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, and Minister for Immigration and Multicultural Affairs v Al Shamry (2002) 110 FCR 27.
The appellant made further submissions before Federal Magistrate Barnes which her Honour considered along with the grounds stated in the original and amended application for judicial review (above).
In relation to the first issue her Honour found that the current Tribunal was not required to consider the scope of s91R of the Act, having already made credibility findings adverse to the appellant. In relation to the allegation of bias, her Honour found that there was nothing in the material before the Court ie the current Tribunal’s reasons, to support any actual or apprehended bias on the part of the current Tribunal, rather the material showed that the appellant had had “the opportunity to elaborate on his claims”. Her Honour noted later in her reasons (at [24] and [29]) that the appellant could have put a transcript of the hearing before the current Tribunal into evidence before her, but he had failed to do so, and it was for him to make out his case (citing Abebe v Commonwealth of Australia (1999) 197 CLR 510).
Her Honour noted that a merits review of the current Tribunal’s decision was impermissible. She went on to find that no breach of s424A had been established because the Tribunal was not required to put its reasoning process to the appellant for comment, relying on SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190, and country information was exempt from the operation of that section. Her Honour further found that the current Tribunal was not required to make its own enquiries, that there was no evidence to suggest that the Tribunal had failed to understand or deal with the applicant’s claims, and that this was “not a case in which a ground of no evidence is made out”.
The appellant’s application was accordingly dismissed on the basis that he had failed to demonstrate any jurisdictional error on the part of the current Tribunal.
GROUNDS OF THE PRESENT APPEAL
The Notice of Appeal filed in this Court on 17 December 2007 contains three grounds as set out below:
1The Tribunal did not consider my application for a protection visa according to s 91R of the Migration Act 1958. The Tribunal had bias against me and failed to assess the chance of my persecution on return to China.
2The Tribunal failed to carry out its statutory duty. The Tribunal had not notified me the reason or part of the reasons for affirming the decision. I was not given an opportunity to comment upon the reason.
3The Tribunal did not make a decision based on rational foundation.
THE CONTENTIONS
There were a number of hearings of this appeal before me. At the first hearing on 9 April 2008 the appellant appeared in person unrepresented but assisted by an interpreter. He made some short oral submissions. Mr Baird appeared for the first respondent.
At the first hearing Mr Baird relied upon the written submissions he had previously filed and made some further oral submissions in response to my concerns about the lack of a transcript of the current Tribunal’s hearing. After I reserved my decision on that occasion, and upon my invitation, Mr Baird obtained and filed a transcript of the hearing before the current Tribunal. A further brief hearing was held on 22 May 2008, when Mr Baird tendered that transcript. On that occasion the appellant made some further brief oral submissions which were to the same effect as the submissions he made at the first hearing.
In his written submissions, Mr Baird addressed each of the grounds of appeal in turn. In relation to ground one, he submitted that the current Tribunal had rejected the appellant’s claims for credibility reasons and therefore the current Tribunal did not need to consider the meaning of the word ‘persecution’ in s 91R of the Act. In relation to the bias allegation incorporated in ground one, he submitted that the appellant bears the heavy onus of establishing bias and there is nothing in the materials to support such a serious allegation.
In relation to ground two, Mr Baird submitted that the matters the current Tribunal relied upon were matters that were put to the Tribunal by the appellant and were therefore exempt from the provisions of s 424A(1) pursuant to s 424A(3) of the Act. Further, he submitted that the current Tribunal did not rely upon the appellant’s visa application and even if it did, it did not constitute information that was a reason, or part of the reasons, for the current Tribunal’s decision. Therefore, the current Tribunal was not obliged to refer to it in its reasons for decision.
Finally, Mr Baird submitted that, on a fair reading of the Tribunal’s reasons for decision, it was apparent that the current Tribunal had considered each of the appellant’s claims and rejected them for the reasons stated. Furthermore, insofar as the current Tribunal based its decision on independent country information, it was entitled to.
Mr Baird referred to four aspects of the transcript of the hearing before the current Tribunal. In relation to the subject of Falun Gong membership cards and lists, he submitted that even if there was some error in the way the current Tribunal expressed itself on this subject, the critical issue was that the current Tribunal concluded that Falun Gong practitioners were not part of a membership based system, according to independent country information. It was therefore acting within its jurisdiction in making this finding of fact. It followed that even if the current Tribunal had made an error in relation to this issue (which the first respondent did not accept) it was an error of fact and not a jurisdictional error.
Secondly, in relation to the appellant’s evidence about his practice of Falun Gong in China, Mr Baird submitted that the transcript showed that the appellant had been asked a series of questions on this subject and failed to provide clear and responsive answers. He submitted that there was, therefore, an evidentiary basis for the current Tribunal’s conclusion that “the applicant’s evidence regarding his involvement in China (in Falun Gong) was vague and lacking in detail”. Furthermore, whether factually correct or not this was a finding of fact that could not constitute a jurisdictional error on the part of the current Tribunal.
Thirdly, he submitted that a similar position applied to the current Tribunal’s questioning of the appellant about his Falun Gong practice in Australia. There was, therefore, an evidentiary basis for the current Tribunal’s conclusion on this issue that “the applicant claimed to have practised from time to time in Sydney however he did not give any detail and told me that he was not known to any other regular practitioners”.
Finally, in relation to the issue of the appellant’s passport and departure from China, he submitted it was clear from the transcript that the current Tribunal had questioned the appellant about this issue. He submitted there was therefore an evidentiary basis for its conclusion that “if he had been a known Falun Gong practitioner he would not have been able to obtain a passport in his own name or have it renewed”. And further, the current Tribunal reached its conclusion about this matter based upon independent country information (as it was entitled to). If any error occurred in relation to this subject, it was therefore an error of fact and did not constitute jurisdictional error.
CONSIDERATION
At the outset it should be noted that none of the appellant’s grounds of appeal identifies an error on the part of the Federal Magistrate and this of course is the primary focus of an appeal to this Court from a decision of the Federal Magistrates Court.
Even if I were to assume that the appellant is alleging that the Federal Magistrate erred by failing to identify the errors allegedly made by the current Tribunal as set out in the grounds of appeal, none of those grounds contains any particulars to make it possible to assess the nature of the alleged error made by the current Tribunal. For example, in ground two, the appellant alleges that: “…the Tribunal had not notified me the reason, or part of the reasons for affirming the decision”, yet he has not identified which reason, or part of the reasons he is referring to. Similarly, in ground three, the appellant refers generally to the lack of any “rational foundation” for the decision.
Finally, even if I were to put aside these defects and attempt to consider the alleged errors made by either the Federal Magistrate or the current Tribunal (so far as is possible without particulars), in my view none of the grounds of appeal has any merit. This is so for the reasons expressed by the learned Federal Magistrate in her rejection of the similar grounds of review before her. Specifically: s 91R of the Act did not arise; the bias allegation is not supported by any evidence or materials; and s 424A(1) of the Act does not apply to the Tribunal’s reasoning process, nor to independent country information (see her Honour’s reasons at [14] and [15]).
As to the allegation of irrationality made in ground three, I have had the benefit of reading the transcript of the hearing before the current Tribunal. After carefully considering both that transcript and Mr Baird’s submissions on the concerns I raised with him, I am satisfied that if the current Tribunal made any error in relation to these areas of concern (see [23] to [26] above), it would be an error of fact within the fact-finding jurisdiction of the Tribunal. More importantly, it would not be an error that pointed to irrationality on the part of the current Tribunal such as would vitiate its decision for jurisdictional error: see SZDTZ v Minister for Immigration [2007] FCA 1824 per Greenwood J.
For these reasons this appeal must be dismissed.
ORDERS
I order that this appeal be dismissed.
I will hear the parties on costs.
Associate:
Dated: 18 July 2008
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
Counsel for the Appellant: In person Counsel for the First Respondent: Mr Knackstredt Solicitor for the Second Respondent: Clayton Utz
Date of Hearing: 9 April and 22 May 2008 Date of Judgment: 18 July 2008
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