SZJVY v Minister for Immigration and Citizenship
[2008] FCA 336
•26 February 2008
FEDERAL COURT OF AUSTRALIA
SZJVY v Minister for Immigration and Citizenship [2008] FCA 336
SZJVY v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 2239 OF 2007GRAHAM J
26 FEBRUARY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2239 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJVY
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
26 FEBRUARY 2008
WHERE MADE:
SYDNEY
THE COURT:
1.Orders that the appeal be dismissed.
2.Grants leave for the respondent Minister to file in court the affidavit of Richard John Baird sworn 25 February 2008.
3.Orders that the appellant pay the respondent Minister’s costs fixed in the sum of $2936.75.
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 2239 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJVY
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
JUDGE:
GRAHAM J
DATE:
26 FEBRUARY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant was born in Liaoning in the People’s Republic of China on 10 August 1966.
On 25 October 2004, he obtained a passport in his own name under which he travelled from the People’s Republic of China to Australia via Korea. He entered Australia under a temporary business visa of three months’ duration which he obtained in China on 12 July 2005.
On 24 July 2005, he left the People’s Republic of China and he arrived in Australia on 25 July 2005.
On 19 August 2005, he applied for a Protection (Class XA) visa. On 19 September 2005, the Minister’s delegate refused that application. On 21 October 2005, he applied for a review of that decision by the Refugee Review Tribunal (‘the Tribunal’).
He was invited to attend a hearing before the Tribunal on 30 November 2005 and duly attended. The Tribunal affirmed the decision of the Minister’s delegate by a decision dated 2 December 2005 which was handed down on 22 December 2005.
In proceedings in the Federal Magistrates Court of Australia, that decision of the Tribunal was quashed on 7 July 2006 when the matter was remitted to the Refugee Review Tribunal for further consideration. On 14 August 2006, three letters in the same form were sent to the appellant at different addresses, two of which were returned unclaimed, and one of which was not returned. On 25 August 2006, the Tribunal invited the appellant to a further hearing on 21 September 2006 which he attended. The hearing occupied almost one and a quarter hours.
On 25 October 2006, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa and notified that decision to the appellant on 14 November 2006. On 13 December 2006, the appellant applied for constitutional writ relief in respect of the Tribunal’s second decision. On 4 April 2007, an Amended Application was filed in the Federal Magistrates Court. That application was dismissed and the appellant was ordered to pay the respondent Minister’s costs in the amount of $5,000.00.
On 14 November 2007, the appellant filed a Notice of Appeal in this Court appealing from the whole of the judgment of the learned Federal Magistrate given on 25 October 2007.
In the appellant’s application for a Protection (Class XA) visa, he stated that he was a Falun Gong practitioner, that he first became a member ‘through the introduction’ by his wife, that he lost his job because of his involvement with Falun Gong in 1999 when the Chinese authorities first banned Falun Gong, that he went to Beijing to participate in Falun Gong activities and whilst there was detained. He claimed that he was physically tormented and was questioned by the police for two days. He says that he was sent back to Liaoning two days later and was dismissed from his employment. He says that because of his bad record with the police he could never find another job in China, he also says that he secretly supported Falun Gong with most of his time.
The Tribunal member delivered her Statement of Decision and Reasons after considering the Department’s file relating to the appellant, the material that was before the delegate and referred to in the delegate’s decision and other material available to her from a range of sources. The Tribunal member had regard to the evidence given by the appellant at the first Tribunal hearing on 30 November 2005 after listening to the tape recording of that hearing. She also had regard to the oral evidence presented by the appellant at the second Tribunal hearing on 21 September 2006.
It was part of the appellant’s evidence that his wife had been arrested on 8 April 2004 because of her involvement in Falun Gong. According to the appellant, she was detained whilst shopping at a market and the appellant says that he has not had contact with her again since. He said that he had received news that she was probably sentenced to five years’ imprisonment. The appellant stated to the Tribunal that nothing had happened to him after his wife’s arrest in April 2004.
The Tribunal formed the view that the appellant lacked credibility and that his claims could not be accepted. The Tribunal member said that the appellant’s evidence was inconsistent, contradictory and implausible. She did not accept that the appellant commenced the practice of Falun Gong anytime prior to leaving China. She was not satisfied that he was arrested in 1999 because of his practice of Falun Gong or that he lost his employment and could not find other employment. The Tribunal was not satisfied that the authorities constantly attended the appellant’s home and told the appellant and his wife to discontinue Falun Gong practice.
The Tribunal found that the appellant had not made any contact with the Falun Dafa Association in Australia after his arrival, which was inconsistent with the Tribunal’s experience of what happened with genuine and sincere Falun Gong practitioners. The Tribunal did not accept that the appellant’s wife had been detained in April 2004 because of Falun Gong practice, and did not accept that she had been sentenced to five years in prison because of her Falun Gong practice. The Tribunal member was of the opinion that had the appellant been a person of adverse interest to the Chinese authorities, he would have found it very difficult to exit China using a passport in his own name.
The Tribunal member was not satisfied that the applicant was a Falun Gong practitioner or that he had been engaged in the practice of Falun Gong since 1997. The Tribunal rejected the appellant’s claim that he practised Falun Gong in China. The Tribunal member went so far as to express the view that the appellant fabricated the claims which he made in an attempt to create for himself the profile of a refugee. The Tribunal member was unable to be satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
Section 65(1) of the Migration Act 1958 (Cth) (‘the Act’) relevantly provides as follows:
‘65(1)After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; …
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.’
The relevant criterion prescribed by the Act in respect of an applicant for a Protection Class (XA) visa is to be found in s 36(2)(a) of the Act which provided as follows:
‘36(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …’
The Refugees Convention is a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the reference to the Refugees Protocol is a reference to the Protocol relating to the Status of Refugees done at New York on 31 January 1967. The Refugees Convention as amended by the Refugees Protocol relevantly defines ‘refugee’ as follows:
‘… the term “refugee” shall apply to any person who:
(2) … owing to well-founded fear of being persecuted for reasons of ... religion ..., membership of a particular social group … is outside the country of his nationality and … owing to such fear, is unwilling to avail himself of the protection of that country; …’
Proceedings before the Tribunal are not adversarial but inquisitorial. The Tribunal is not in the position of a contradictor of the case being advanced by an applicant. A Tribunal member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out. It is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation.
The Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57] – [58]). As Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 (‘SZBEL’) at [48]:
‘Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.’
In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (‘SZBYR’), the High Court drew attention to the ‘limited scope of s 424A’ (at [22]). At [15], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:
‘… Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review …’
Later, at [21], their Honours said:
‘… Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …’
At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 saying:
‘Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs, that the word “information”:
“…does not encompass the tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or the conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc…”
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …’
(Footnotes omitted)
In the Notice of Appeal filed 14 November 2007 in this Court, the appellant stated his reliance upon three grounds as follows:
‘1.The Tribunal did not believe the claims of my application based on the officer’s assumption. The Tribunal did not make a decision on my application based on evidence and materials. The Tribunal failed to consider my application in accordance with S91R of the Migration Act 1958.
2.The Tribunal failed to notify me in writing the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application in accordance with S424A of the Migration Act 1958.
3.The Tribunal failed to assess the chance of my persecution because of my involvement with Falun Gong.’
When asked to address ground number 1 in the Notice of Appeal, the appellant said through the Mandarin interpreter that he had, ‘nothing to say’. He indicated that he had attended upon a lawyer for free legal advice and that the lawyer had suggested to him that he write the sentence referring to s 91R of the Act. He said that he had nothing further to say about ground number 1. In respect of ground number 2, the appellant indicated that the free legal advice lawyer had suggested to him that the matter raised in ground 2 constituted a point which he could rely upon. He said it was suggested by the lawyer that the Tribunal did not consider his case in accordance with s 424A of the Act.
He amplified this by saying that, ‘Before they refused my application, they should have given me a letter telling me the reason why they refused my case’. My understanding is that this proposition as advanced by the appellant is inconsistent with those passages in SZBEL and in SZBYR to which I have referred. The submission does not seem to me to accord with s 424A(1)(a) of the Act and what the High Court said in SZBYR about the obligations of the Tribunal under that section.
In respect of ground number 3, the appellant simply said that the Tribunal should have known that the Chinese authorities persecute Falun Gong practitioners. The problem with this submission is that even if that be correct, the Tribunal affirmed the decision of the Minister’s delegate on the basis, amongst others, that the Tribunal did not accept that the appellant was a Falun Gong practitioner.
In relation to the appeal generally, the submission of the appellant was that he had belief in the fact that the Court would give him a ‘clear result’. It seems to me that in relation to the responsibilities of the Court, in considering an appeal such as that presently before it, a fair result would be consistent with the order which I propose to make, namely that the appeal be dismissed. The appellant is not entitled to call upon the Court to provide him with a merits review of the Tribunal’s decision.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 13 March 2008
The Appellant appeared in person. Counsel for the First Respondent: J P A W Knackstredt Solicitor for the First Respondent: Clayton Utz The Second Respondent filed a submitting appearance. Date of Hearing: 26 February 2008 Date of Judgment: 26 February 2008
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