SZKES v Minister for Immigration and Citizenship

[2007] FCA 1250

FEDERAL COURT OF AUSTRALIA

SZKES v Minister for Immigration and Citizenship [2007] FCA 1250

SZKES v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1027 OF 2007

TRACEY J
17 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1027 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKES
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	17 AUGUST 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 1027 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKES
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	17 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate given on 21 May 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 11 January 2007: see [2007] FMCA 875. The Tribunal had affirmed a decision of a delegate of the then Minister of Immigration and Multicultural Affairs, dated 17 August 2006, refusing to grant a protection visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China.  In a statement attached to his protection visa application, and resubmitted with slight amendments to the Tribunal, the appellant claimed to have a well-founded fear of persecution as a Falun Gong practitioner.  He claimed to have started practising in 1999 to cure his ailments.  He claimed that he demonstrated in front of a council building but police threatened to arrest the demonstrators and put them in gaol.  One month later, his employer dismissed him on the basis of his practise of Falun Gong.  He claimed to have been unemployed for three months and found a job at the end of 2000 but dared not mention his practise of Falun Gong to his new employer.  He claimed secretly to practise Falun Gong at home and was constantly stressed by news that other Falun Gong practitioners were gaoled and were required to attend brain washing classes.  The appellant claimed that he was so stressed that he had to leave China. 

3. The appellant attended a hearing before the Tribunal to give oral evidence.  He confirmed that the claims in his protection visa application were true but also made additional claims.  He stated that, in August 2001, the Public Security Bureau (PSB) took him to the local Council and later informed his work place of his practise of Falun Gong.  The appellant claimed the PSB took him away for brainwashing on a number of occasions.  He also claimed to have been dismissed from his new employment and another position, due to his participation in the Falun Gong movement.

4. The Tribunal put to the appellant its concerns as to the inconsistencies between his oral evidence and his written claims.  It noted that he had not mentioned his detention in his protection visa statement and his inconsistent accounts of his employment history.  The Tribunal also questioned the appellant on his knowledge of Falun Gong.  On 5 December 2006, the Tribunal wrote to the appellant inviting him to comment on information, in particular, inconsistencies between the written and oral evidence.  The Tribunal noted that there was no response to this invitation by the date the response was to be provided, 19 December 2006 or at all.

5. The Tribunal had regard to all the claims made by the appellant but did not accept that he  was a credible witness generally.  It did not accept his evidence concerning his practise of Falun Gong and gave the following reasons:

   ·The appellant’s oral evidence was inconsistent and implausible.  He did not know the names of the Falun Gong exercises and, although he claimed he was uneducated and could not read the books, the Tribunal found this was inconsistent with his claims of having read one of them. 

   ·The Tribunal found that his evidence as to his detention and brainwashing to be ‘vacillating’ and implausible.  It noted that the appellant had claimed to have been brought in every 7 to 10 to 14 days for brainwashing and, according to the claims provided, this would have covered a period of 70 to 140 weeks of brainwashing without actual detention or arrest.

   ·The Tribunal found implausible the claim that the appellant, who, on his account, had been dismissed from employment due to his practising of Falun Gong and had been subject to constant brainwashing, was able to find casual employment and remain in it if the PSB were looking for him.

   ·The Tribunal found serious inconsistencies, by way of omissions, in the appellant’s oral evidence when compared with his statement which was attached to his application to the Tribunal.  The appellant gave oral evidence of being dismissed from two jobs due to his participation in Falun Gong and of holding a number of casual positions.  However, in his statement and protection visa application, he only referred to losing one job.  He said that he had kept his practice secret from his second employer.  Furthermore, in his protection visa application, the appellant never referred to his being brainwashed, a claim which the Tribunal considered would be of such great importance that it would have been referred to in his initial application had it been true.

6. The Tribunal did not, therefore, accept that the appellant was a Falun Gong practitioner.  Accordingly, the Tribunal found that the appellant would not practise Falun Gong or be perceived as a Falun Gong practitioner if he returned to China and that he did not have a well-founded fear of persecution as a Falun Gong practitioner.

7. On 13 February 2007, the appellant applied to the Federal Magistrates’ Court for judicial review of the Tribunal’s decision.  He claimed that he had been denied procedural fairness.  He also sought to impugn the Tribunal’s findings of fact.  An amended application filed on 21 May 2007 advanced five “grounds”.  In fact these “grounds” were a restatement of the appellant’s factual claims ordered in five unnumbered paragraphs.

8. The Federal Magistrate considered both the original application and the amended application and found that most of the grounds were merely challenges to the factual findings of the Tribunal.

9. In relation to the assertion that the Tribunal did not provide the appellant with procedural fairness, his Honour was of the view that s 422B of the Migration Act 1958 (Cth) (‘the Act’) applied to the application and that, in any event, the Tribunal invited the appellant to the hearing and raised the relevant issues relating to the decision under review with him. There was no breach of s 425 of the Act. The Federal Magistrate also considered the question of whether there was a breach of s 424A of the Act, but found that there was no such breach. The Tribunal had invited the appellant’s comment on the information contained in the visa application. The statement attached to the protection visa application was sent to the Tribunal by the appellant and it therefore fell within the exception provided for in s 424A(3)(b) of the Act. No other information considered by the Tribunal was comprehended by s 424A(1). The information relied on to reject the appellant’s credibility came from the appellant’s own evidence. There was no breach of Part 7 Division 4 of the Act and nor was there denial of procedural fairness.

10. The Federal Magistrate found that the Tribunal’s decision was a privative clause decision that had not been infected by jurisdictional error.  The application was dismissed.

11. The notice of appeal to this Court, which was filed on 7 June 2007, contained the following grounds:

    1.   There was no evidence or the (sic) other materials to deny that I was a Falun Gong practitioner.

    2.   The Tribunal member failed consider (sic) that the current situation in China.

    3. A declaration that the purported decision of the Refugee Review Tribunal (the decision) was not a “privative clause decision” within the meaning of s474 of the Migration Act 1958.

12. The appeal came on for hearing this morning.  The appellant appeared in person.  He had the assistance of a interpreter. 

13. I sought to explain to him the respective roles of the Minister’s delegate, the Tribunal, the Federal Magistrate’s Court and this Court in dealing with his various applications and appeal. I explained to him that I did not consider that the grounds appearing in his notice of appeal alleged error on the part of the Federal Magistrate. I was concerned that the third ground might have been intended to allege error on the part of the Federal Magistrate in determining that the Tribunal’s decision was a privative clause decision for the purposes of s 474 of the Act. I invited the appellant to clarify whether this was what he intended and, if so, why it was said that the Federal Magistrate had erred. The appellant was unable to assist.

14. I have read the Federal Magistrate’s reasons for decision.  I can detect no appealable error in them.  No such error is alleged in the appellant’s notice of appeal.

15. The appeal must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        17 August 2007

Litigant in person
Counsel for the Respondent:	Mr J Mitchell
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 August 2007
Date of Judgment:	17 August 2007