SZJUK v Minister for Immigration and Citizenship

[2007] FCA 797

FEDERAL COURT OF AUSTRALIA

SZJUK v Minister for Immigration & Citizenship [2007] FCA 797

MIGRATION LAW — appeal from judgment of Federal Magistrate dismissing appeal from Refugee Review Tribunal — no appealable error — appeal dismissed with costs

Migration Act 1958 (Cth) ss 91R(3), 424A

SZJUK v Minister for Immigration and Citizenship [2007] FMCA 439 referred to

SZJUK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 596 OF 2007

WEINBERG J
23 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 596 OF 2007

BETWEEN:

SZJUK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	23 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be 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 596 OF 2007

BETWEEN:

SZJUK
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE:	23 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Scarlett given on 21 March 2007: SZJUK v Minister for Immigration and Citizenship [2007] FMCA 439. His Honour dismissed, with costs, an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 25 October 2006 and given on 14 November 2006.

2. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 20 October 2004.  On 3 December 2004 he applied for a protection (class XA) visa.  On 7 March 2005 a delegate of the respondent Minister refused that application.  The appellant then sought review of that decision from the Tribunal.  The Tribunal affirmed the delegate’s decision on 4 August 2005.  The appellant then sought judicial review. 

3. On 5 June 2006 Federal Magistrate Barnes made orders by consent quashing the Tribunal’s decision and remitting the application for reconsideration.  The appellant was then invited to attend a second Tribunal hearing, which he did.  Ultimately, the Tribunal rejected his application.  In doing so, it found that his evidence was not credible, largely because the claims that he advanced before the first Tribunal differed in certain respects from his claims before the second Tribunal.

4. The appellant’s claims can be briefly stated.  He says that he is a member of Falun Gong, and that by reason of that fact, he faces persecution if required to return to China. 

5. In his application for a protection visa the appellant said that he was born in Fujian, China, in 1972 and was married in 1996.  His wife and daughter continue to reside in China.  He said that he was a sales/department manager prior to coming to Australia, and had held that position from March 2003 to October 2004.  He claimed that he had been unemployed from February 1996 until February 2003 and that prior to that he had been a construction worker and a farmer.  He claimed that he left China legally using a passport issued in his name in Fujian in November 2002 which would expire in November 2007.  He claimed that he had had difficulties, which he detailed as “bribery”, obtaining his passport.  He claimed that his passport was not valid for return to China because “it must have been blacklisted”. 

6. The appellant stated that he had been involved in the 1989 students’ pro-democracy movement.  He said that this prevented him from going to college although he had passed the entrance exams.  He said that he began practising Falun Gong in 1997 and claimed that he had been detained for one month after being arrested, together with other members, at that time.  He said that it was as a result of his arrest that he was prevented from taking on employment between 1997 and 2003. 

7. The appellant then said that he went through many years of hardship and finally became a real estate manager.  He became involved in further demonstrations and hunger strikes calling upon the authorities to release Falun Gong members who had been arrested and detained.  He claimed that he went into hiding and eventually used the passport issued to him in 2002 to escape to Australia.  He claimed to have participated in Falun Gong activities in Australia which he said would aggravate the “crimes” for which he was wanted in China. 

8. In a written statement made on 17 May 2005 the appellant gave a somewhat different version of events.  He claimed that his passport had been taken by force by a person whom he named.  He said that he had come to Australia together with eight other people, six of whom were not with his company.  Five of those people had gone onto the United States.  He claimed that he was now being sought in Australia by one of the people he had come to this country with, and that his family had been told that he would be killed if he returned to China because he had destroyed the plans of others.  Those persons had his documents, including his building certificate.  He had not revealed these matters to his migration agent because he was worried that she might pass that information on to those who were looking for him. 

9. The appellant gave evidence at a hearing before the first Tribunal.  On this occasion he stated that he did not have his passport because a person whom he named had taken it from him together with his money at the airport.  The person threatened to kill his family if he told anyone about this.  He claimed that there was a person in Australia looking for him, but he was too frightened to identify that person to the police. 

10. Also, before the first Tribunal the appellant claimed that in 1997, after his arrest, he had in fact been detained for a year and not as he previously said for one month.  He said that his migration agent had mistakenly written in his application for a protection visa that he had been detained for a month.  The appellant said that he had only practised Falun Gong in 1997 for a period of three months.  Presumably that explained why he could not explain or describe the main exercises of Falun Gong, and said that he simply “followed others”.  When he came to Australia he pursued Falun Gong and claimed to have been photographed by Chinese government security agents who had shown the photographs to his family in China. 

11. Before the second Tribunal the appellant claimed that he had in fact been regularly practising Falun Gong in China since at least 2002.  He claimed to have been practising Falun Gong in Australia since August 2005.  On this occasion he said that he had sent a camera, with film enclosed, which showed him practising Falun Gong in Australia to his family in China in 2006.  He claimed that the camera had been intercepted by the Chinese authorities. 

12. By the time of the second Tribunal hearing in September 2006, the appellant had acquired a great deal more knowledge about Falun Gong than he had had at the time of the first Tribunal hearing.  He also provided photographs of himself practising Falun Gong, and submitted a petition signed by 11 individuals attesting to the fact that he was a practising member.  He claimed to have taken part in protest activities outside the Chinese consulate and claimed (for the first time) that three of his colleagues had been arrested for Falun Gong activities in October 2003.  He said that their imminent release would be problematic because they had identified him.

13. The appellant also claimed that he had been involved in the pro-democracy movement in 1989.  He claimed that this led to his having been administratively detained for 14 days, and expelled from school.  He outlined a number of consequences that had befallen him as a result of his pro-democracy activities and his Falun Gong practice.  He said that he had been forced to report regularly to the authorities and to undergo political study.  He claimed that his daughter’s school fees had been doubled, and that his movements within China had been restricted.  He claimed that he had been restricted to having one child, while others had been permitted to have more.

14. Finally the appellant claimed that he had gained employment in 2002 with a real estate firm and by 2003 had been promoted to the position of project manager at that firm.  As previously indicated, he said that he had travelled on his own passport but a Chinese person had seized it, together with his money, upon his arrival in this country.  He said that he had come to believe that the Chinese person was part of a smuggling ring.  He said that he had been able to get a fresh Chinese travel document after his arrival in Australia.  He claimed that he owned a property in China which he had had to offer as security to ensure his return.  Thus he was forfeiting that property by making this application. 

15. The second Tribunal was plainly concerned about some of the material put forward by the appellant. On 7 September 2006, the day following the hearing, it sent a letter to the appellant, in apparent compliance with s 424A of the Migration Act 1958 (Cth), giving him particulars of information that it considered would be the reason or a part of the reason for affirming the decision under review, and inviting comment upon it. In substance, the matters raised were that:

    ·the appellant arrived in Australia on 20 October 2004 but did not apply for a protection visa until 3 December 2004;

    ·the appellant left China legally on a passport in his own name;

    ·the appellant had a single residential address between 1972 and 2004;

    ·the appellant gave his profession as a sales manager in a real estate development company from March 2003 until October 2004;

    ·the appellant originally claimed that he fled China because of his involvement in recent protests against the treatment of Falun Gong practitioners, but in a later statement said that he had left China on the instructions of his employer;

    ·he had given varying employment histories over the course of his protection visa application;

    ·he had not mentioned the arrest of his three colleagues in China prior to the second Tribunal hearing;

    ·he had not mentioned the restriction imposed upon him of having only one child in either his protection visa application or at the first Tribunal hearing;

    ·at the second Tribunal hearing, though mentioning his claim that his camera had been intercepted by the Chinese authorities, he made no reference to the photographs that he had earlier claimed were taken by Chinese government security agents; and

    ·no reference could be found in external sources to any arrests of Falun Gong practitioners in Fujian as early as 1997.

16. The appellant provided a detailed response to this letter.  Notwithstanding that response, the Tribunal concluded that the appellant’s claims should be rejected.  It did so primarily because it regarded the appellant as a person of no credibility.  It rejected his account of having become the manager of a property development company within a year or so of joining that company, after many years of unemployment, as inherently improbable.  It noted that he had travelled regularly within China and was able to travel overseas legally using a passport issued in his own name.  It noted further that at the second Tribunal hearing the appellant contradicted his evidence before the first Tribunal in various respects, including the period that he practised Falun Gong in China, the matter of the camera and film, and the period of imprisonment that he had actually served.  It regarded his claim, first raised in September 2006 that three of his colleagues had been arrested in October 2003 as a “recent invention”. 

17. The Tribunal did not accept that the appellant had been able to pay off a property within two years. Nor did it accept his claim that the Chinese authorities had taken that property as security for his return. It found that he was of no adverse interest to those authorities. It doubted the genuineness of his commitment to Falun Gong, and concluded that the reason he had involved himself with that sect in Australia was purely to strengthen his claims as a refugee. It therefore disregarded the conduct engaged in by the appellant in Australia in accordance with s 91R(3) of the Migration Act. 

18. Finally, the Tribunal concluded that the appellant had not been a pro-democracy activist.  It regarded his claims of past harm as contrived.  It rejected the appellant’s professed theory that the Chinese person who had supposedly taken his passport had any connection with the Chinese authorities, and viewed this claim as pure speculation. 

19. The Federal Magistrate dismissed the application for judicial review largely on the basis that the appellant was simply challenging findings of fact.  No jurisdictional error had been shown. 

20. The Notice of Appeal to this Court alleges that the Federal Magistrate erred in finding that there was no evidence to support the appellant’s claim that the second Tribunal had made a statement to the effect that it did not understand why the matter had been remitted after the first Tribunal hearing.  No particulars of any evidence regarding that issue were provided in the Notice of Appeal.  An affidavit was filed, apparently directed towards obtaining leave to appeal from the judgment of the Federal Magistrate.  However, leave to appeal is not required, and the affidavit is therefore pointless. 

21. The appeal raises one ground only.  That ground obviously required evidence to be put before the Court below.  It is of note that a direction had been made by the Federal Magistrate that, with the exception of the Court Book, all evidence relied upon by a party must be in the form of an affidavit.  No evidence going to the ground raised was tendered.  In fact, the issue was only raised as an oral submission by the appellant, presumably in support of an argument that the second Tribunal exhibited bias of one sort or another. 

22. Plainly, this ground of appeal cannot succeed.  The other points made by the appellant all invite merits review.  No appealable error has been shown.  The appeal must be dismissed with costs. 

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:        23 May 2007

The appellant appeared in person
Solicitor for the Respondents:	Mr A Cox, DLA Phillips Fox
Date of Hearing:	23 May 2007
Date of Judgment:	23 May 2007