SZJUX v Minister for Immigration and Citizenship

[2007] FCA 1211

FEDERAL COURT OF AUSTRALIA

SZJUX v Minister for Immigration and Citizenship [2007] FCA 1211

SZJUX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 948 OF 2007

MANSFIELD J
6 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 948 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJUX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	6 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal is added as the second respondent.

2.The appeal is dismissed.

3.The appellant pay to the first respondent the costs of the appeal.

4.The costs of the first respondent be fixed in the sum of $2,200.

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 948 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJUX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD J
DATE:	6 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate given on 10 May 2007.   The Federal Magistrate declined to set aside or quash a decision of the Refugee Review Tribunal given on 7 November 2006 which affirmed a decision of a delegate of the first respondent of 17 July 2006 refusing the appellant a protection visa for which he had applied on 29 June 2006 shortly after his arrival in Australia.

2. The appellant has not appeared at the hearing.  He was notified by the Court by letters of 21 and 22 June 2007 of the date and time of the hearing.  The address to which that letter was sent was his address for service in his notice of appeal.  A Registrar gave directions on 22 June 2007 as to the future conduct of the appeal.  Those directions included the first respondent also notify the appellant of the date of hearing of the proposed appeal.  The first respondent notified the appellant of the date of hearing of the appeal by letter of 28 June 2007.  He was also served with the appeal book prepared by the first respondent on 4 July 2007.

3. As he did not appear this morning the interpreter who was present to assist him in presentation of his contentions was kind enough to telephone the appellant on the mobile telephone number given on his notice of appeal.  She reported that the appellant in a brief conversation had said that he was not informed by his agent of the date of the hearing and that he was at work.  It was a short conversation and the appellant did not ask the interpreter to do anything else with respect to the appeal.  The appeal was not instituted by the appellant through a solicitor.  He did not on his notice of appeal include details of a migration agent contact. 

4. I am satisfied that the appellant was aware of the appeal today and has simply not attended.  I therefore propose to continue with the hearing of the appeal in his absence. 

5. The appellant is a citizen of the People’s Republic of China.  He was born on 28 February 1963.  In his application for a protection visa he claimed to fear persecution from the Chinese authorities because he was a Falun Gong practitioner.  There were two particular instances of mistreatment which he claimed to have suffered by reason of him being a Falun Gong practitioner whilst he was in China, after developing his interest in Falun Gong from about 1993.  He claimed to have attended a Falun Gong demonstration in April 1999 in Beijing, and that shortly after that Falun Gong was banned by the Chinese Government.  He said that in December 1999 police searched his home and found some Falun Gong material.  He claimed to have been detained for 30 days and then released after his mother had paid a bribe, and that he lost his job as a result of that incident.

6. The second occasion upon which he claimed to have suffered mistreatment at the hands of the Chinese authorities occurred in May 2001 when, with other Falun Gong practitioners, he claimed to have demonstrated in front of the Tianjin Government Building to protest the treatment of Falun Gong members.  He, along with other protesters, was arrested and without trial he claims to have been sentenced to two years imprisonment.  He also claims to have been severely mistreated whilst he was in prison during that time.  After his release from prison, as his passport reveals, he travelled overseas on several occasions and returned to China and eventually came to Australia where he promptly applied for a protection visa. 

7. The Tribunal appears to have accepted that active Falun Gong practitioners in China may be vulnerable to persecution by the Chinese authorities, at least it appears to have assumed that.  It rejected the appellant’s claim to a protection visa simply because it did not believe that he was a Falun Gong practitioner and so it did not accept that he had been mistreated in the way he had described in December 1999 and then from May 2001.  Its reasons for that conclusion broadly were that the appellant was able to demonstrate to the Tribunal only very limited knowledge of Falun Gong and, although he had claimed to be an active Falun Gong member, he did not assert to the Tribunal that he had any real contact with Falun Gong members in Australia and was not supported by Falun Gong members in Australia. 

8. It also had regard to the fact that his passport which he produced to the Tribunal was issued on 25 February 2002 during the time that the appellant claimed to have been in prison.  It did not accept that the passport would have been issued by the Chinese authorities at that time and in those circumstances.  It also did not accept that the appellant would have been able to leave China on a valid passport as he did, were he of interest to the Chinese authorities as an identified Falun Gong practitioner.

9. To succeed in setting aside that decision, it was necessary for the appellant to demonstrate to the Federal Magistrate that the decision of the Tribunal was impugned with jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). The Federal Magistrate was not satisfied that the decision of the Tribunal was so infected with jurisdictional error. The grounds upon which the appellant identified to the Federal Magistrate potential jurisdictional error were vague and imprecise. The Federal Magistrate accepted that the adverse credibility finding made against the appellant was available to the Tribunal on its findings of fact and that, in the course of making its decision, it had complied with the procedural obligations imposed upon it by Div 4 of Pt 7 of the Migration Act 1958 (Cth) (the Act).

10. The Federal Magistrate also rejected the appellant’s contention that he had been deprived of the opportunity to present evidence in support of his case to the Tribunal.  There was no evidence put before the Federal Magistrate by the appellant that he wished to present such evidence and had been prevented in any way by the Tribunal from doing so.  Consequently, the Federal Magistrate dismissed the application.

11. The grounds of appeal before this Court are threefold.  They are that the Tribunal was biased against the appellant and did not make a fair decision; secondly, that he was not given the opportunity to provide more documentation and to seek legal advice and so the decision was unfair; and thirdly, that the decision was unreasonable, which I take as an assertion that the decision was so unreasonable that it could not have rationally been made by the Tribunal.  See, for example, re Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/200 (2003) FCR 43. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, it was accepted that a decision tainted with such unreasonableness is one infected with jurisdictional error.

12. I have considered all the material in the appeal book including the revised judgment of the Federal Magistrate which simply adds a reference to a decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 in relation to the operation of s 424A of the Act. In my view none of those grounds of appeal is made out. I shall deal briefly with each of them.

13. In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, the Court explained that the test for apprehended bias in relation to proceedings such as those of the Tribunal is whether a fair minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the question to be decided. There is nothing in the notice of appeal presented by the appellant which indicates any basis on which it could be said that the Tribunal, when approaching its task, did anything which might suggest a reasonable apprehension of bias on its part. In my view that ground of appeal is clearly not sustainable.

14. The second ground of appeal concerns the conduct of the hearing by the Federal Magistrate.  The appellant asserts procedural unfairness by not being given the opportunity to produce more evidence or to seek legal advice in relation to the proceeding.  There is nothing in the material before me which indicates that the appellant before the Federal Magistrate sought the opportunity to submit further documentation and was refused the opportunity to do so.  Nor did the appellant before the Federal Magistrate seek any adjournment to do so.  Nor has he before this Court identified what that further documentary material might be so as to indicate that it could conceivably have been admissible in the proceedings before the Federal Magistrate or on this appeal. 

15. As counsel for the first respondent has accepted, the appellant in the course of the hearing before the Federal Magistrate did make submission as to why he had not provided further documentary evidence to support his claimed refugee status before the Tribunal.  That is not the same point.  It is simply not made out that the appellant sought the opportunity to produce further evidence to the Federal Magistrate and was denied that opportunity or sought an adjournment to do so and was denied such an adjournment.  Nor is there anything to suggest that he sought an adjournment to seek legal advice and was refused.  The foundation for the alleged procedural unfairness before the Federal Magistrate is simply not made out nor, I might add, is there anything to indicate that the appellant before the Tribunal sought an adjournment of the Tribunal hearing and was deprived of it or sought to adduce further evidence before the Tribunal and was not permitted to do so.

16. The third ground in my view is also simply not made out.  The Federal Magistrate’s reasons are clear.  The Federal Magistrate was confined to identifying if there was jurisdictional error on the part of the Tribunal.  It was confronted with a significant adverse credibility finding made against the appellant apparently on rational grounds.  The Tribunal was entitled to have regard to the information to which it had regard in reaching its conclusion.  Its conclusion about the appellant’s credibility was based partly upon his evidence and partly upon information which he provided to the Tribunal itself as to the date upon which he had been issued a passport and as to his claimed period of imprisonment. The other information to which the Tribunal had regard was information which is not specifically about the appellant.  None of the information to which the Tribunal had regard in reaching its conclusion therefore fell into the category in respect of which s 424A(1) was activated because it was encompassed within s 424A(3). 

17. For those reasons, in my judgment, there is no merit in the appeal and it must be dismissed.  I so order.  The appellant is to pay the costs of the first respondent.

18. The first respondent seeks a fixed sum for the costs of the appeal in the sum of $2200.  Whilst I am generally cautious about fixing a lump sum for costs without some foundation for it having been identified, I think the amount so claimed is a conservative one and having regard to the first respondent’s obligations in the preparation of the appeal book, in the preparation of an outline of submissions and in appearing today, in my view, is well within the likely bounds of what may have been recovered on taxation.  I therefore fix the costs of the first respondent in the sum of $2,200.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:        9 August 2007

Counsel for the Appellant:	The appellant did not appear
Counsel for the First Respondent:	Mr G Johnson
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	6 August 2007
Date of Judgment:	6 August 2007