SZJTO v Minister for Immigration and Citizenship

[2007] FCA 778

FEDERAL COURT OF AUSTRALIA

SZJTO v Minister for Immigration and Citizenship [2007] FCA 778

SZJTO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD522 OF 2007

COLLIER J
22 MAY 2007
BRISBANE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD522 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJTO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	22 MAY 2007
WHERE MADE:	BRISBANE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

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

2.The appeal is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD522 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJTO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	22 MAY 2007
PLACE:	BRISBANE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Scarlett FM of 13 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 13 October 2006 and handed down on 2 November 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

   Background

2. The appellant is a citizen of the People’s Republic of China (“PRC”) who arrived in Australia on 16 August 2005. On 12 September 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 9 November 2005. On 14 December 2005 the appellant applied to the Tribunal for a review of that decision.

3. On 3 February 2006 the Tribunal, differently constituted, had affirmed the delegate’s decision not to grant the appellant a visa however, that decision was set aside by the Federal Magistrates Court on 12 July 2006 and the matter was remitted to the Tribunal for reconsideration (second Tribunal).

4. The appellant claimed to have well-founded fear of persecution as a Falun Gong practitioner. He claimed to have become a member in 1996 and to have organised major Falun Gong activities in his area. The appellant’s role was to develop new members in his area and to cover and protect them. In 2003 police came to arrest members during a meeting, including the appellant. As he was a key member, he was placed in a separate room and was interrogated for 24 hours which included mental and physical torture. He claimed that the head of his organisation, who had not been identified, paid a large sum for the appellant’s release and assisted him in obtaining a visa and passport for Australia. However, before the second Tribunal the appellant claimed involvement of the Chinese Communist Party (“CCP”) in his leaving China, that they arranged everything for his departure and wanted him to develop Falun Gong members in Australia.

   The second Tribunal hearing

5. On 15 August 2006 the Tribunal wrote to the appellant inviting him to attend a hearing and present arguments in support of his claims. On 16 August 2006 the Tribunal wrote to the appellant inviting him to provide information, in particular: the documents the appellant wished to rely on, letters evidencing the appellant was a genuine Falun Gong practitioner, and the appellant’s passport. On the same day, the Tribunal sent the appellant another letter, this time inviting the appellant to comment on information that his protection visa application was inconsistent with his statement attached to it regarding his difficulties leaving China and that country information indicated Falun Gong practitioners would obtain proof through local Falun Gong centres and societies. The appellant responded in a letter dated 7 September 2006, attaching the two letters sent by the Tribunal and requesting a later date by which to provide the requested evidence and stating that the information he provided was not inconsistent.

6. In a letter dated 5 September 2006, the Tribunal further invited the appellant to comment on information regarding his Business Short Stay visa which showed a photograph different to the appellant and provided different personal claims to that of his protection visa application. This letter had been sent “RTS Left Address” on 7 September 2006.

7. The appellant attended the hearing on 12 September 2006. The Tribunal handed the appellant a copy of the 5 September 2006 letter after the hearing on 12 September 2006. The appellant replied on 27 September 2006 with: “I refer to the letter from you dated 5 September 2006. I would like to explain to you that if I would have to do so otherwise, I would not have left China safely. That was also the reson [sic] why was granted only a Bridging Visa C”.

8. After the hearing, a Tribunal officer also handed the appellant in person another letter inviting him to comment on information pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”). This letter also stated the Tribunal had not granted the appellant an extension of time to provide the additional information sought on 16 August 2006.

   The second Tribunal decision

9. The Tribunal found the appellant was unable to adequately demonstrate any of the main Falun Gong exercises or to name them. With the appellant’s claimed history of Falun Gong practice since 1996 and his being a key member, the Tribunal expected the appellant to be able to demonstrate or name the exercises. Further, as based on country information, all practitioners should be able to at least perform Falun Gong exercises confidently. The appellant also had not read Zhuan Falun by Master Li and did not know the ethical formula for Falun Gong. Further, the appellant did not practice Falun Gong in Australia other than on rare occasions and did not provide documentary evidence from Falun Gong societies. The Tribunal had accepted country information which suggested that Falun Gong practitioners could provide proof through such avenues.

10. In relation to the evidence given before the second Tribunal that the appellant’s departure from the PRC had been arranged by the CCP which wanted him to develop Falun Gong members in Australia, the Tribunal found it was not credible that the CCP government which banned Falun Gong, would assist the appellant to develop further practitioners in Australia. The Tribunal also found that on the basis of the appellant’s response in his letter dated 27 September 2006, that the appellant had deceived the Australia authorities into granting him a visa to Australia.

11. Based on all those finding, the Tribunal found the appellant was not credible. Consequently, it found the appellant was not and never had been a Falun Gong practitioner and did not accept his claims.

    Before the Federal Magistrate

12. On 27 November 2006 the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The appellant relied on an amended application filed on 15 February 2007. The grounds in that application were: that the Tribunal’s decision was based on wrong information; that the decision was not made in accordance with s 91R; that the decision was not supported by evidence or materials; the Tribunal relied on irrelevant material; the Tribunal relied on out of date information; and that the Tribunal did not consider the protection visa according to the Act due to bias.

13. The Federal Magistrate considered the grounds raised by the appellant. His Honour found that the first ground had no substance and appeared to challenge the factual findings of the Tribunal. His Honour found in relation to the second ground that the Tribunal had applied the definition of persecution and serious harm correctly and according to s 91R and that the Tribunal made findings on the appellant’s credibility. No particulars were provided in relation to the contention that the Tribunal relied on irrelevant information or out of date information. Further, the choice of assessment of country information was a factual matter for the Tribunal. There was also no evidence of bias.

14. His Honour then turned to a consideration of s 424A of the Act but found the Tribunal’s letters complied with the requirements in the statute and that there was no breach of the section. Further, that there was no breach of s 425. As there was no jurisdictional error, his Honour dismissed the application.

    Appeal to this Court

15. On 29 March 2007 the appellant filed a notice of appeal in this Court which asserted the following:

    The Tribunal had bias against me and failed to consider my claims. My application for a protection visa was not considered in accordance with s 91R of the Migration Act 1958.
    The Tribunal’s satisfaction that I am not a refugee was not made based on a rational and logical foundation for this belief.
    The Tribunal relied upon out to date information for the consideration of my application.
    Federal Magistrates court failed to find the errors.

16. As I indicated at the hearing, it is appropriate to order that the Refugee Review Tribunal be added as a second respondent.

17. No written submissions have been filed by the appellant in this matter. At the hearing, the appellant, who was self-represented, made a number of statements referable to the facts of the case, and his view that the Tribunal was biased.

18. The first respondent relied on written submissions previously filed.

19. Considering each ground of appeal in turn:

    1.As pointed out by the Full Court in SBBS v MIMIA (2002) FCAFC 361 at [43], allegations of bias ought not lightly be made, and must be clearly alleged and proved. The allegation of bias by the Tribunal in this case is not particularised, and in my view there is nothing on the face of the notice of appeal which supports the allegation. Further, given the extensive reasons provided by the Tribunal, the claim by the appellant that the Tribunal failed to consider his claims cannot be supported.

    2.In relation to the claim by the appellant that the decision of the Tribunal was not made in accordance with s 91R Migration Act 1958 (Cth), I note that s 91R was considered by the Tribunal in the course of its decision. The Tribunal made reference to, and applied, relevant principles of law articulated by the High Court in VBAO v MIMIA (2006) 231 ALR 544. In my view correctly, Scarlett FM held that the Tribunal applied the definition of persecution and serious harm correctly and according to s 91R (at [14]). In this light, and in the absence of particularisation by the appellant as to this ground of appeal, in my view it fails.

    3.The claim by the appellant that the Tribunal’s findings were not based on a rational and logical foundation is not particularised or supported by submissions. Notwithstanding this broad assertion, no error is demonstrated, or explanation given as to why the findings of the Tribunal on the facts were not open. Accordingly, this ground of appeal fails.

    4.The claim by the appellant that the Tribunal relied on out of date information in considering his application was also raised before Scarlett FM. His Honour said that no particulars were provided by the appellant of the out of date information; that his independent reading of the Tribunal decision did not indicate any information relied on by the Tribunal was clearly out of date; and that the choice and assessment of country information is a factual matter for the Tribunal and it is not obliged to inquire into more recent country information. In considering the reasons for decision of the Tribunal, I note that the Tribunal accessed information sourced from 2002-2004, including information referable to a government ban on the Falun Gong movement in July 1999. The weight given by the Tribunal to such information is a matter for the Tribunal itself, as part of its fact-finding function; and the question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court: NAHI v MIMA [2004] FCAFC 10 at [11]. The appellant has not explained before me why the information relied on by the Tribunal was out of date, and in any event, other than by an unsupported assertion, the appellant has not demonstrated that the Tribunal erred by relying on this information. Accordingly, this ground of appeal fails.

    5.To the extent that the appellant claims as a ground of appeal that Scarlett FM erred in that he failed to find errors in the decision of the Tribunal as claimed in grounds 1, 2 and 3, this ground of appeal clearly cannot be substantiated in light of my findings. To the extent that the appellant claims as a ground of appeal that Scarlett FM otherwise erred, the ground of appeal is not particularised, is vague and unsubstantiated, and in my view fails.

    THE COURT ORDERS THAT:

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

    2.The appeal is dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        22 May 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 May 2007
Date of Judgment:	22 May 2007