SZJUV v Minister for Immigration and Citizenship

[2007] FCA 1105

FEDERAL COURT OF AUSTRALIA

SZJUV v Minister for Immigration and Citizenship [2007] FCA 1105

SZJUV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 760 OF 2007

RYAN J
30 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 760 of 2007

BETWEEN:

SZJUV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

30 JULY 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, to be taxed in default of agreement.

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 760 of 2007

BETWEEN:

SZJUV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	30 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate on 12 April 2007 dismissing an application for review of a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”), dated 27 October 2006 and handed down on 23 November 2006.  The Tribunal had affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Multicultural Affairs, as he was then known (“the Minister”) refusing to grant the appellant a protection (Class XA) visa. 

2. By way of background, the appellant is a national of the People’s Republic of China (“China”), and arrived in Australia on 3 May 1997 on a false Indonesian passport and using a false name.  On 11 December 2000, the appellant lodged a protection (Class XA) visa application with the Department of Immigration and Multicultural Affairs (“the Department), using both the false Indonesian passport and the false name.  In this application the appellant claimed he had been in Indonesia with his family and could not find work.  The appellant claimed that he could not return to China and, as a result, he had entered Australia on a false Indonesian passport.  The appellant also indicated that his father had experienced difficulties in Indonesia as an ethnic Chinese.  That protection visa application was deemed invalid. 

3. On 7 June 2006, after the appellant had been placed in immigration detention, he lodged the application for a protection (Class XA) visa that is the subject of these proceedings.  By this application, the appellant claimed that, as he had commenced the practice of Falun Gong in Australia, he therefore had a well-founded fear of persecution if he were to return to China.  The appellant claimed that he and his family had left China in 1996 to work in Indonesia.  He had been unable to obtain a work visa to work in Indonesia, so, after travelling through Malaysia and Thailand on a visitor’s visa, he had entered Indonesia illegally without using his Chinese passport or obtaining a visa.  The appellant worked for his uncle in Jakarta and lived with his family there from February to May 1997. 

4. He claimed that he had experienced problems with the “local Indonesian people” when they were made redundant by his uncle, because he was employed in their stead.  He further claimed that the conflict had escalated, and that he had suffered physical threats and harassment.  The appellant claimed that his uncle had assisted him to leave Indonesia and travel to Australia.  The appellant further claimed that, as he had entered Indonesia illegally, he could not use his Chinese passport to leave and had therefore used a false Indonesian passport to enter Australia.  His family has since returned to China. 

5. He claims that he started practising Falun Gong in September 2000 in Melbourne, in a park opposite the Queen Victoria Markets.  He further claimed that after he moved to Sydney in 2001, he practised Falun Gong once at Hyde Park, twice in a park in Auburn, and once in Lidcombe.  Thereafter, due to clashes with his work timetable, he had only been able to perform Falun Gong exercises at home in private.  The appellant also claimed that he had attended some of the Falun Gong demonstrations outside the Chinese consulate in Sydney.  He asserted that, if he were to practise Falun Gong in China, he would be arrested.  The appellant also claimed that his initial protection visa application had been made by a friend in Melbourne to whom he had given his passport.  He, the applicant, said that he had not personally filled in any forms or signed any documents. 

6. He believed that he was in Australia legally, and only became aware that his initial visa application had not been successful when he was detained in May 2006 in Sydney.  The appellant did not provide any other information or documents to support his application and, on 5 July 2006, a delegate of the Minister refused to grant the appellant a protection visa.  On 7 July 2006, the appellant lodged an application for review of the delegate’s decision with the Tribunal.  On 14 September 2006, the appellant’s migration agent, in support of his application, provided the Tribunal with a letter from the appellant’s family and three statutory declarations testifying to his commitment to Falun Gong. 

7. At the hearing before the Tribunal on 22 September 2006, the appellant confirmed that the content of his protection visa application had been translated to him, and that it reflected his claims.  In oral submissions at the hearing, the appellant claimed that he had practised Falun Gong once a week in a park.  When the Tribunal put to him statements in his protection visa application which contradicted that assertion, he said that it “must have been a misinterpretation.” 

8. On 12 October 2006, the Tribunal wrote to the appellant, pursuant to s 424A(1) of the Migration Act 1958 (Cth) (“the Act”), asking for his comments in relation to the information contained in his visa application of December 2000, his current visa application, the inconsistencies between the information in the current visa application and his evidence at the hearing, and the potential issues arising under s 91R(3) of the Act. The appellant’s migration agent responded on behalf of the appellant by way of letter dated 26 October 2006.

9. On 23 November 2006, the Tribunal handed down its decision affirming the decision of the delegate of the Minister to refuse the appellant a protection visa.  The Tribunal did not accept the appellant’s explanation in relation to the lodgement of the protection visa application in December 2000.  Nor did it accept his explanation of his continued use of a false identity until he was located by the authorities.  The Tribunal concluded at [133.6] of its reasons;

   ‘The applicant’s preparedness to lodge a protection visa application in a false identity with the fabricated claims set out above, and to maintain that false identity in Australia, is so significant and serious that the Tribunal finds he is not a witness of truth, and cannot be believed more generally.’

10. Although the Tribunal accepted that the appellant had acquired a knowledge of Falun Gong since arriving in Australia and had taken part in Falun Gong activities, it was not satisfied, for the purpose of s 91R(3) of the Act, that he had done so otherwise than for the sole purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia owed any protection obligations.

11. On 7 December 2006, the appellant filed an application for judicial review of the Tribunal’s decision dated 23 November 2006.  The grounds of that application were as follows;

    ‘(1)I am a Falun Gong practitioner.  I was practicing [sic] Falun Gong in September 2000 until now.

    (2)Falun Gong was banned by Chinese authorities in China.

    (3)I’m really worried about that if I return to China.  I will face persecution by Chinese authorities.’

12. The learned Federal Magistrate noted that the appellant was inviting the Court to reconsider his application on the merits, which it was not open for the Court to do.  Reference was made to a decision of a Full Court of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547, at 558. Cameron FM further observed that the Tribunal had largely based its decision on findings as to the appellant’s credibility, the making of which had been open to the Tribunal as a function par excellence of the primary decision-maker, referring to Re Minister for Immigration and Multicultural Affairs Ex Parte Durairajasingham (2000) 168 ALR 407 at 423, per McHugh J. The learned Federal Magistrate therefore held that the appellant’s pleaded grounds of review failed to identify any jurisdictional error in the Tribunal’s decision. His Honour went on to recount at [14] of his reasons the following issues raised by the appellant in his oral submissions;

    ‘i))The applicant was questioned multiple times about his passport by the Tribunal member,

    ii)There was a translation issue in relation to his Falun Gong practices in Australia,

    iii)          The applicant’s friend had completed his original visa application.’

13. His Honour held that none of those issues revealed any jurisdictional error.  In the first place, the Tribunal’s decision turned, not on what had happened to the appellant’s passport, but, rather, on his use of a false passport and his continued adoption of the false identity for most of his time in Australia.  Therefore, in the absence of any evidence to the contrary, no conclusion could be drawn that the questioning by the Tribunal was unreasonable or exhibited a degree of hostility to the appellant which would permit an imputation of actual or apprehended bias. 

14. Secondly, in relation to the assertion that there had been problems in translation of the appellant’s account of his practice of Falun Gong in Australia, his Honour noted that the Tribunal had sent the appellant a letter pursuant to s 424A(1) of the Act, which enabled the appellant to clarify any issues regarding the practice of Falun Gong. Further, the Tribunal had accepted that the appellant had practiced Falun Gong in Australia, but focused on the application to that practice of s 91R of the Act. Also, his Honour noted that there had been no complaint in respect of the translation services provided at the hearing before the Tribunal.

15. In relation to the contention that a friend of the appellant had completed the invalid application, the learned Federal Magistrate considered that the Tribunal had made a finding of fact in relation to the completion of the invalid application, which it was not open to the Magistrates Court to revisit.  His Honour therefore ordered that the application be dismissed and the applicant pay the first respondent’s costs, fixed in the sum of $5,000. 

16. The notice of appeal filed in this Court on 2 May 2007 recites that the appeal is from the whole of the orders of Cameron FM, pronounced on 12 April 2007, on the following grounds;

    ‘(1)     The learned Federal Court of Australia erred in law,

    (2)The learned Federal Court of Australia was wrong in finding that the Refugee Review Tribunal acted properly in its findings.’

17. The appellant has not filed any written submissions.  However, his notice of appeal gives the following particulars of its grounds;

    ‘(1)The Tribunal failed to consider important evidences which it has made its finding in relation to my credibility,

    (2)The Tribunal failed to consider important evidences while it made its findings in relation to my involvement in Falun Gong.’

18. In relation to the first particular, the appellant contends that he was unable to prepare his protection visa application by himself, as he could not speak English and did not have sufficient legal knowledge to do so.  He submits that he would not have been able personally to lodge a false visa application, as he did not have the language ability or knowledge about Indonesia to do so.  He therefore claims that the Tribunal was incorrect in finding that he was prepared to lodge a protection visa application based on a false identity and false passport. 

19. The appellant, in his oral submissions on the hearing of the appeal today, contended that the Tribunal’s decision on credibility disregarded an important piece of evidence by overlooking that he had been obliged to rely on outside assistance for the preparation of his first protection visa application.  Under the second particular of the grounds of appeal, the appellant acknowledged that the Tribunal had accepted that he was a Falun Gong practitioner but, contends that it “failed to consider important evidences available to it, such as the US Department of State Country Reports on Human Rights Practices – 2006 Released by the Bureau of Democracy, Human Rights and Labour, March 2006.”  From the content of this Report, the appellant contended, the Tribunal should have accepted that he would be subjected to persecution if he were to return to China and to continue practising Falun Gong.  The appellant also submitted that, the Tribunal had failed to consider evidence given by other Falun Gong practitioners in Australia and had completely ignored the current situation in China, in which, he alleges, the persecution of Falun Gong practitioners is encouraged or condoned. 

20. In his written submissions, the Minister contends that the appellant’s claims under the first particular of the grounds in the notice of appeal “impermissibly seek merits review.”  Accordingly, the Minister submits that the Tribunal was well aware that the appellant did not speak English and, while accepting that a friend had assisted the appellant in making his first protection visa application, it had rejected, because of the details contained in the application, his assertion that he had no knowledge of the use of his false identity and the contents of the application. 

21. The Minister contends that the appellant’s second particular is misconceived for two reasons. First, the Tribunal had concluded that the appellant had become a Falun Gong practitioner in Australia for the purpose of strengthening his claim to be a refugee and, thus, it was required by s 91R(3) of the Act to disregard that conduct.

22. Secondly, in respect of the Report of the US Department of State of 6 March 2007, the Tribunal was not able to have regard to evidence which had not been published at the time of its decision in October 2006.  The Minister’s submissions concluded with the contention that the appellant had not demonstrated any error suggesting that the Tribunal had failed to exercise, or exceeded, its jurisdiction or, that it had committed any error of the kind instanced in King v Hickman;  Ex Parte Fox & Clinton (1945) 70 CLR 598 as disentitling it to immunity from judicial review by force of s 474 of the Act.

23. In his oral submissions in support of the appeal this morning, the appellant repeated that the Tribunal had accepted that he was a Falun Gong practitioner. He said that the US State Department Report, although post-dating the Tribunal’s decision, attested to widespread persecution of Falun Gong adherence in China. That persecution has been endemic, the appellant contended, since 1999 and the Tribunal must be taken to have known of it. However, that submission does not meet the Minister’s contention that the Tribunal did not make a finding that Falun Gong practitioners were not subject to persecution in China but, rather, based its conclusion on the inability of the appellant to overcome the obstacle erected by s 91R(3) of the Act.

24. I have examined for myself the reasons of the Tribunal and the reasons of the learned Federal Magistrate with the assistance of the outline that has been furnished on behalf of the Minister.  I have been unable to discern in those reasons any of the errors, either canvassed in the Court below or raised by the grounds in the notice of appeal to this Court and reiterated by the appellant in his oral submissions today.  Accordingly, the appeal must be dismissed with costs.  That will be the order of the Court.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        30 July 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms R Francois
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	30 July 2007
Date of Judgment:	30 July 2007