SZKJX v Minister for Immigration and Citizenship

[2007] FCA 2043

FEDERAL COURT OF AUSTRALIA

SZKJX v Minister for Immigration and Citizenship [2007] FCA 2043

SZKJX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1635 OF 2007

DOWSETT J
21 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1635 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKJX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	21 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed; and

2.the appellant pay the first respondent’s costs of the appeal fixed in the amount of $1983.

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 1635 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKJX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	21 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of China who arrived in Australia on 4 April 2006.  On 2 May 2006 he applied for a protection visa.  On 31 July 2006 a delegate of the first respondent (the “Minister”) declined that application.  The appellant subsequently applied to the second respondent (the “Tribunal”) for reconsideration of his application.  The Tribunal affirmed the delegate’s decision.  The appellant then applied to the Federal Magistrates Court for review of that decision.  The Federal Magistrate dismissed his application.  That decision is the subject of the present appeal. 

2. The basis of the appellant’s claim to be a person to whom Australia owes protection obligations is that at some time, perhaps in 2000 or a little later, whilst he was working as a restaurant manager in China, another employee, Jin Chen, was dismissed after police visited the restaurant in order to investigate Mr Chen’s involvement with Falun Gong.  The appellant spoke to his employer, supporting Mr Chen.  The employer told him that if he wished to help Mr Chen he should talk to the police.  The appellant went to the police station, but the police paid him no attention.  Mr Chen later came to his home to thank him for his assistance.  The police also came and took them both to the police station.  The appellant was questioned as to why he had helped a Falun Gong member.  He was subsequently released, but Mr Chen was detained until May 2005.  They maintained regular contact.  The appellant claims that the police then commenced to monitor his movements.  In his original application he suggested that they visited his home twice in June and July 2005.  He was frightened by these visits and decided to leave the country.  He had no difficulty in doing so. 

3. At the hearing in the Tribunal he was questioned about his relationship with Mr Chen and the various incidents concerning the police.  There was some doubt as to whether the police visit to the restaurant occurred in the year 2000 or 2002.  The appellant also said that Mr Chen was released after a few days and subsequently re-arrested.  He said that the police visited him on numerous occasions.  At some stage the police seemed to believe that he was a Falun Gong adherent.  They questioned him about his relationship with Mr Chen.  He explained that Mr Chen was one of his subordinates.  It seems likely that he told the police that he was not a Falun Gong practitioner, but this is not entirely clear from the record.  He said that since he left China his wife, who is still there, has received visits from the police.  He is worried that if he returns to China he might be imprisoned because the authorities suspect him of involvement with Falun Gong.  He has never been a Falun Gong practitioner.

4. The Tribunal accepted that an incident such as he described may have occurred at the restaurant but did not accept that the appellant’s conduct had led to his being regarded as a Falun Gong adherent.  The Tribunal noted that when he went to the police station after the incident at the restaurant, the police did not pay him any attention.  The Tribunal did not accept that the police had taken Mr Chen and the appellant from his home to the police station for questioning as he claimed, basing this conclusion upon inconsistencies in his accounts.  It also did not accept that he was subject to visits from the police to the extent that he claimed, or that there was a real chance of his being harmed for reason of his imputed involvement with Falun Gong.  In other words, the Tribunal was not willing to act upon his evidence because of internal inconsistencies and a certain degree of improbability in his claim. 

5. In his application to the Federal Magistrates Court the appellant asserted that the Tribunal’s decision was affected by jurisdictional error, that it took account of irrelevant considerations, that it failed to afford him procedural fairness and that it had acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning. 

6. The allegation of irrelevant consideration was, in the Federal Magistrate’s view, without particularity and therefore could not be supported. In any event, the only information which the Tribunal considered was information provided by the appellant. His Honour could find no particularization of absence of procedural fairness and was unable to discern any such unfairness. He pointed out that a letter had been sent to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the “Act”) setting out matters of concern and that there had been no breach of that section which, by virtue of s 422B, was an exhaustive statement of the requirements of procedural fairness. In any event, as the Federal Magistrate found, the reasons were based upon the Tribunal’s assessment of the appellant’s evidence. It therefore seemed unlikely that s 424A had any application. The allegation that the decision was capricious and arbitrary was also without particularity. The decision itself offered no basis for any of the appellant’s complaints or any other basis for a finding of jurisdictional error. In those circumstances the application was dismissed.

7. The grounds of appeal from that decision are as follows:

   ‘The [appellant] claims the RRT failed to accord procedural fairness when conducting a review on his application for a protection visa. 

   Particulars:

   The Tribunal’s reasons for its disbelief of the [appellant’s] claims were based on inconsistencies in the [appellant’s] evidence, omissions and lack of detail.  The Tribunal failed to invite the [appellant] to comment on such inconsistencies and to provide additional information as required by section 424A of the Migration Act.’

8. The grounds of appeal identify their own shortcomings. Section 424A requires the Tribunal to give notice of information which it considers would be the reason or part of the reason for affirming the decision. Inconsistencies, omissions and lack of detail do not constitute information for that purpose. In any event, in a letter dated 30 October 2006, the Tribunal extended an opportunity to comment upon the matters which were causing it concern.

9. One other matter requires comment.  The Tribunal also considered the possibility that the appellant might be entitled to claim refugee status by virtue of the fact that since he has been in Australia he has become a Christian.  However it was not satisfied that he was entitled to a protection visa on that basis.  The Federal Magistrate also dealt with this matter.  Before me the appellant has disavowed any reliance upon it.  It is therefore not necessary for me to consider whether he has fear of persecution by reason of his Christian belief. 

10. The appeal must be dismissed.  I order that the appellant pay the first respondent’s costs fixed in the amount of $1983.  

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        19 December 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms V McWilliam
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent did not appear
Date of Hearing:	21 November 2007
Date of Judgment:	21 November 2007