SZKEV v Minister for Immigration and Citizenship

[2007] FCA 1866

FEDERAL COURT OF AUSTRALIA

SZKEV v Minister for Immigration and Citizenship [2007] FCA 1866

SZKEV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1428OF 2007

MANSFIELD J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1428  OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKEV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD  J
DATE OF ORDER:	16 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

3.Costs of the first respondent fixed in the sum of $2000 including disbursements.

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 1428  OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKEV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MANSFIELD  J
DATE:	16 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Emmett given on 2 July 2007.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 14 December 2006 and published on 9 January 2007.  The Tribunal affirmed a decision of a delegate of the first respondent of 8 September 2006, refusing the appellant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act).

2. The appellant is a National of the People’s Republic of China.  He is 26 years old.  After completing his schooling he worked as a driver for a public transportation company in the Shandong Province between 2000 and 2006.  He obtained a visitor visa to come to Australia on 21 March 2006 and arrived in Australia on 25 June 2006.  He travelled on a passport lawfully issued by the People’s Republic of China.  Shortly after his arrival he applied for the protection visa.

3. The appellant claimed to be entitled to a protection visa because he had a well founded fear of returning to China by reason of his practice of Falun Gong.  What he claimed in his protection visa application is set out accurately in the Tribunal’s reasons as:

   In a statement attached to the visa application the applicant stated that in China he worked as a driver for the Shandong Gong Jiao Company, which was a public transportation company.  Through his job he met a senior member of Falun Gong, Mr Teng.  After learning Falun Gong from Mr Teng for several months he became a member of Falun Gong and helped him to organise Falun Gong activities in Qingdao.  He worked and lived according to the principles of ‘Truth, Kindness and Tolerance’.  He helped Mr Teng from 2001 to 2006 to deliver promotion leaflets for Falun Gong, arrange underground meetings and to transport members to underground meetings in Qingdao.  In March 2006 the bus he was driving, with Falun Gong members on board, was stopped by the police and the persons were detained by the police.  Evidence was found on the bus.  He and others were kept at the police station for ‘education classes’.  They did not have proper food and were forced to sleep on the floor.  The applicant had become weak.  After 4 days his family managed to secure his release after paying bribes.  As soon as he was released his parents helped him to apply for a visa for Australia so that he could travel to Australia and apply for protection.  Since his arrival in Australia his parents have called him and stated that the police had been to his home several times asking about his whereabouts.  He could not return to China because he would suffer persecution from the Chinese Government.

4. The Tribunal conducted a hearing on 31 October 2006 at which it asked the appellant extensively about the history of his involvement in Falun Gong and his knowledge of Falun Gong.  In its conclusions the Tribunal referred to that material at some considerable length.  In essence, the Tribunal did not accept that the appellant was a witness of truth and concluded that his evidence about his practice of and involvement in Falun Gong in China was not truthful.  The Tribunal’s reasons are explained briefly in the reasons of the Federal Magistrate at [20]:

   The Tribunal found that the applicant was not a credible witness and that his account of his involvement in Falun Gong in China was not truthful.  Specifically, the Tribunal made the following findings:

   - while it accepted that the applicant was a public bus driver, the Tribunal did not consider credible that the applicant would distribute pamphlets about a movement he knew to be illegal on a public bus before being a practitioner of Falun Gong.  It also did not consider credible that a key member of Falun Gong would have asked a non-member to distribute pamphlets for the movement;

   - the Tribunal did not accept the applicant’s claims (sic) that he assisted transporting members of Falun Gong to activities beyond his normal duties as a bus driver on public bus routes.  Nor did the Tribunal accept as credible that Falun Gong practitioners would have hired buses to travel between cities given the Falun Gong movement’s banned status;

   - the Tribunal did not accept that the applicant was ever a Falun Gong practitioner in China given his ‘extremely limited knowledge’ of Falun Gong.  It also found the applicant’s evidence regarding his practice of Falun Gong inconsistent;

   - the Tribunal considered that someone who had been a Falun Gong practitioner in China would practice in Australia.  The applicant’s evidence was that he had not practiced Falun Gong in Australia;

   - the Tribunal was therefore not satisfied that the applicant had come to the attention of Chinese authorities, been detained, or suffered persecution in the past or that the applicant would practice Falun Gong If (sic) he returned to China.  The Tribunal was accordingly not satisfied that there was a real chance that the applicant would suffer harm if he returned to China and that he had a well-founded fear of persecution for a Convention reason.

5. Because the Tribunal did not accept that the appellant had practised Falun Gong in China in the past, it did not accept the various complaints he made, in particular of having been arrested and detained in March 2006, as a result of his Falun Gong beliefs or his distribution of Falun Gong pamphlets in his bus.  Nor did it accept that the Chinese authorities might have perceived in the past, or might perceive in the future that the appellant is a person disposed towards Falun Gong.  It was not satisfied that he would practice Falun Gong if he returns to China, or would provide assistance to the Falun Gong movement if he did so.  Therefore, it concluded that there is no real chance that he would suffer serious harm amounting to persecution for a Convention reason if he returns to China.  

6. It was not the role of the Federal Magistrate, and it is not the role of the Court, to simply revisit the facts and re-decide the case on its merits.  It was the role of the Federal Magistrate, and it is the role of the Court, to decide whether the Tribunal’s decision involved an error which undermined its jurisdiction to have decided the way it did.  The amended application before the Federal Magistrate appears to identify four matters which may involve such error.

7. The Federal Magistrate addressed each of them and rejected each of those assertions.  I have separately considered each of them as well.  In respect of each of those four matters I agree with the conclusion which the Federal Magistrate reached.  I will deal briefly with each of them.

8. The first is that the Tribunal did not approach its task with a mind open to persuasion and so it was biased against the appellant.  There is nothing in the Tribunal’s reasons to indicate that that is the case.  Indeed, it will be a very rare case when such bias may be demonstrated simply by reference to the Tribunal’s reasons.  See SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668.

9. To the contrary, in my view, the Tribunal’s reasons indicate that it identified each of the details of the appellant’s claims and sought to explore them with him to assess whether it was satisfied that they were accurate.  The appellant was also given an opportunity at a directions hearing to produce such other evidence, including evidence as to the course of the Tribunal hearing, as he considered appropriate, to make out his allegation of bias against the Tribunal.  He did not take up that opportunity.

10. The reference to s 91R of the Act is misconceived.  If the Tribunal had accepted that the appellant was not adherent to Falun Gong, or may be perceived as such, then it would have had to decide whether the risk to which he would be exposed would be sufficient to amount to persecution.  Section 91R of the Act would then provide some guidance to the Tribunal on that question.  It did not need to consider that question because it was not satisfied that the appellant is, or may be perceived as, an adherent to Falun Gong.

11. The appellant also asserted before the Federal Magistrate that the Tribunal had not accorded him the opportunity to comment upon certain information which should have been the subject of notification under s 424A of the Act.  That assertion was not particularised either in the documents or in submissions to the Federal Magistrate.  Nor was the appellant able to explain it to me in his submissions today.

12. I do not think there is any information upon which the Tribunal relied to reach its conclusion which attracted the operation of s 424A(1) of the Act.  That is because its conclusion about the appellant’s credibility was based upon what he had said and presented to the Tribunal.  Such information, and the Tribunal’s thinking processes in relation to it, do not fall under s 424A(1).  Section 424A(3)(b) makes that plain.

13. It may also have been implicit in the notice of appeal to this Court that the Tribunal failed properly to consider the claims made by the appellant.  That appears to be reflected in the first of the grounds of appeal, namely, that the Tribunal failed to consider relevant information in China when making the decision about the protection visa. 

14. The appellant was unable to further explain what complaint that ground of appeal raises, or to identify any information which he now says should have been considered by the Tribunal and was not considered by it.  Nor did he identify any feature of his claim or claims by reason of which he said he had a well founded fear of persecution for a Convention reason which the Tribunal did not address.  Nor has my consideration of his application for a protection visa, or what he put to the Tribunal, identified any such matter.

15. Finally, in the notice of appeal, the appellant asserts that the Tribunal did not fully consider the danger he would face if he returned to China.  There is nothing to suggest that the Tribunal was unaware of the potential dangers in China to persons who are adherent to Falun Gong, or who may be perceived as adherent to Falun Gong.  The appellant did not claim that there was any other reason why he would face danger in China.  The appellant’s claim to a protection visa was rejected because the Tribunal was not satisfied that he was a Falun Gong adherent, or might be perceived as such.  I think this ground of appeal, as he explained it, is simply an assertion that the Tribunal got it wrong when it did not accept that he is a Falun Gong adherent, and he repeated in argument that he truthfully asserted that he is a Falun Gong practitioner.

16. As I said earlier in these reasons, the Court does not have the power or function of re-deciding the facts.  Nor did the Federal Magistrate.  It is necessary for the appellant to have persuaded the Federal Magistrate, or the Court on appeal, that the conclusion on those facts was reached through some error going to the jurisdiction of the Tribunal.  None of the matters raised by the appellant either before the Federal Magistrate or on this appeal, in my view, demonstrate such an error.

17. As the appellant has represented himself, I have also carefully considered the Tribunal’s reasons to see if some such error might be apparent.  In my view, no such error is apparent.  As the appellant has failed to demonstrate jurisdictional error on the part of the Tribunal, or error on the part of the Federal Magistrate in considering his application for review of the Tribunal’s decision, this appeal must be dismissed, and I so order.  I also order the appellant to pay to the first respondent the costs of the appeal fixed in the sum of $2000.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield .

Associate:

Dated:        27 November 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms D Watson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 November 2007
Date of Judgment:	16 November 2007