SZKKF v Minister for Immigration and Citizenship

[2007] FCA 1633

FEDERAL COURT OF AUSTRALIA

SZKKF v Minister for Immigration and Citizenship [2007] FCA 1633

SZKKF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1569 OF 2007

TRACEY J
1 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1569 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKKF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	1 NOVEMBER 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 1569 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKKF
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	1 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate given on 20 July 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 January 2007 and handed down on 20 February 2007: see [2007] FMCA 1236. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, as he was then known, to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of the People’s Republic of China (“China”), who arrived in Australia on 12 March 2006.  On 10 April 2006 the appellant lodged an application for a protection visa.  A delegate of the first respondent refused the application on 3 July 2006.  On 3 August 2006 the appellant applied to the Tribunal for a review of that decision.

3. The appellant claimed to have a well founded fear of persecution related to his involvement in Falun Gong.  In his protection visa application the appellant claimed that he practiced Falun Gong from 1993 under his father’s influence, and that soon after he became “obsessed” with Master Li’s teachings.  He claimed that after his father became the leader of their local “study station” the appellant began copying teaching information, tapes and videos, and liaised with a local building manager to ensure that they had “electricity” for their Falun Gong exercise in the morning.  He claimed that, after several years of practice, authorities came to his home warning his family to stop practising Falun Gong, and that, in 2001, he was dismissed by his employer under pressure from the government, due to his family’s popularity amongst Falun Gong practitioners.  The appellant then moved to Beijing, and continued his Falun Gong practice until he was troubled by authorities again in 2005.  The appellant claimed that he subsequently feared for his life and fled China.

4. The appellant made different claims when he appeared in the Tribunal.  He claimed that he had only participated in Falun Gong gatherings on “one or two occasions”.  He claimed that he later assisted two Falun Gong leaders to travel outside China, and, as a result, in 2002 he was detained and mistreated by the Public Security Bureau for 3 months.  The appellant claimed that he escaped from detention and travelled to a friend’s factory where he worked and resided until 2005.  He returned to visit his mother, and was warned that people were looking for him.  Upon returning to his friend’s factory the appellant claimed that he found that it was being investigated for an unrelated matter, so he arranged to leave China.

5. On 4 October 2006 the Tribunal sent a letter to the appellant requesting additional information to be provided by 27 October 2006.  On 27 October 2006 the appellant replied requesting an extension of time to provide the information.  On 30 October 2006 the Tribunal sent a letter informing the appellant that it had extended the time to 22 November 2006.  On 31 October 2006 the Tribunal sent another letter informing the appellant that it had further extended the time to 7 December 2006, and that this letter superseded its earlier letter.  On 16  November 2006 the appellant provided the Tribunal with copies of translated and original documents in support of his application.

6. On 29 December 2006 the Tribunal sent a letter to the appellant at his nominated address for correspondence informing him that a new Tribunal member was dealing with the matter.  The Tribunal invited the appellant to comment on the draft decision by 24 January 2007.  Attached to the letter was part of the draft reasons for the decision.  On 9 January 2007 the Tribunal sent a letter to the appellant’s residential address noting that the letter inviting comment had been returned, and advising that the appellant fill in an enclosed Change of Contact Details form. 

7. On 12 January 2007 the appellant rang the Tribunal regarding the status of his case. After being informed that the Tribunal was waiting on a response to the letter inviting comment, the appellant advised that his address had changed.  On 13 January 2007 the appellant filled in a Change of Contact Details form, providing a new postal address. 

8. No response to the letter inviting comment was received.  On 29 January 2007 the Tribunal sent a letter inviting the appellant to the handing down of the decision, including a highlighted paragraph indicating that the Tribunal was obliged to consider any evidence or submission lodged with the Tribunal prior to the decision being handed down. 

9. The Tribunal rejected all of the appellant’s material claims, as it found that the appellant was not truthful and lacked credibility.  The appellant admitted to travelling on a false passport but did not tell the Department until some time after his application.  The appellant made inconsistent claims in relation to the reason he did not want to return to China, his alleged detention, and his whereabouts prior to leaving China in 2006.

10. Documents relating to the appellant’s divorce and his father’s death in 2002 were given no weight by the Tribunal as independent country information revealed such documents were relatively easy to obtain fraudulently, and the appellant had shown himself capable of obtaining false documents previously.

11. The Tribunal was accordingly not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

12. On 26 March 2007 the appellant filed an application seeking judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The appellant claimed in his only ground of appeal that the Tribunal committed jurisdictional error as it failed to comply with the Migration Act 1958 (Cth) (“the Act”).

13. The Federal Magistrate held that the basis for the decision of the Tribunal was the admitted deception to the Department relating to the false passport, and the inconsistencies between his claims.

14. In relation to the letter sent by the Tribunal inviting comment, the Federal Magistrate noted that it was unclear whether the appellant received the letter due to his change of address. However His Honour was satisfied that the requirements of service of notices, sent pursuant to s 424A of the Act, had been complied with. His Honour further noted that, following the interpretation of s 424A of the Act given by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, the service of such a letter “was probably not required.” The Federal Magistrate also noted that the letter inviting the appellant to the handing down of the decision informed him of his opportunity to submit further evidence, but that nothing was received in response.

15. The Federal Magistrate then considered the reasons of the Tribunal and was unable to identify any jurisdictional error.

16. The Federal Magistrate said that the ground of appeal was “meaningless”. However, his Honour noted that the appellant raised further grounds at the hearing. In relation to the change in the constitution of the Tribunal, the Federal Magistrate found that this was done in accordance with s 422 of the Act. In relation to the credibility finding of the Tribunal, the Federal Magistrate found that the Tribunal had acknowledged that there were reasons why a claimant may not initially tell the truth, but found that, in light of the “complete fabrication” that was presented to the Department, the Tribunal’s findings in relation to credibility were open on the evidence.

17. The Federal Magistrate therefore held that there had been no jurisdictional error affecting the Tribunal’s decision and dismissed the application.

18. The notice of appeal to this Court was filed on 9 August 2007.  The appellant restates the only ground of appeal that appears in the application to the Federal Magistrate Court.

19. The appellant appeared in person.  He had the assistance of an interpreter.

20. I asked him to explain and elaborate upon his appeal ground. He responded by asserting that the account which he gave to the Tribunal was true. He did not point to any legal error on the part of the Tribunal or the Federal Magistrate

21. I have read carefully the reasons for decision of the Tribunal and of the Magistrate. I can detect no jurisdictional error made by the Tribunal and I consider that the learned Federal Magistrate was correct when he came to the same conclusion.

22. The appeal `must be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        1 November 2007

The appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	1 November 2007
Date of Judgment:	1 November 2007