SZKNW v Minister for Immigration and Citizenship
[2008] FCA 713
•13 May 2008
FEDERAL COURT OF AUSTRALIA
SZKNW v Minister for Immigration and Citizenship [2008] FCA 713
Migration Act1958 (Cth)
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152SZKNW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 281 OF 2008
REEVES J
13 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 281 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKNW
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
13 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs fixed in the sum of $2,445.00
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 281 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKNW
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
REEVES J
DATE:
13 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against a judgment of Federal Magistrate Nicholls delivered on 12 February 2008, which dismissed the appellant’s application for judicial review. That application sought review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 20 March 2007 affirming the decision of a delegate of the Minister refusing to grant a protection visa to the appellant.
PROCEDURAL HISTORY
The appellant is a citizen of the People’s Republic of China (‘China’), who arrived in Australia on 7 September 2006. The appellant lodged an application for a protection visa (class XA) one week later on 15 September 2006, claiming to fear persecution in China because he was a Falun Gong practitioner. That application was refused by a delegate of the Minister on 20 October 2006. On 27 November 2006 the appellant applied to the Tribunal for a review of that decision.
Before the Tribunal the appellant claimed that he had come to Australia to allow him to practice Falun Gong. He claimed he commenced to practice Falun Gong in China for about six months, until shortly after it was banned, in July 1999. He alleged that the Chinese authorities did not believe he had ceased to practice Falun Gong and he was therefore detained by them on several occasions and held for questioning for between one and five days.
According to the appellant his interest in Falun Gong was re-ignited after a visit to Australia in 2005. He made contact with other practitioners upon returning to China and eventually returned to Australia in 2006 so that he could practice Falun Gong freely. He claimed that he was unable to return to China because he dared not practise Falun Gong if he returned and he felt his life would be meaningless without his practice of Falun Gong.
THE TRIBUNAL DECISION
The Tribunal did not accept that the appellant is, or was, a genuine practitioner of Falun Gong, due to his limited understanding of Falun Gong practices and beliefs. Notwithstanding his limited education, the Tribunal found that given his claimed activities, the appellant should have been able to discuss his beliefs in some detail.
Further, the Tribunal did not accept the appellant’s claims about his practice of Falun Gong in Australia, on the basis that his claims were vague and unsubstantiated.
The Tribunal noted that the appellant had travelled to Australia in 2005 and returned to China without seeking asylum. The Tribunal rejected the appellant’s claims that he had been detained and questioned by Chinese authorities because of his practice of Falun Gong. In conclusion, the Tribunal stated that it was:
‘…not satisfied that the applicant is telling the truth about his claim of Falun Gong practice in China. The Tribunal does not accept he was a genuine Falun Gong practitioner in China. The Tribunal does not accept that the applicant practices Falun Gong in Australia or that he would practice Falun Gong if he returned to China. It follows that the Tribunal is not satisfied that the applicant was regularly detained and questioned by the Chinese authorities about his Falun Gong practice. The Tribunal is not satisfied that he would be detained or questioned by the Chinese authorities if he returned to China. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his real or imputed association with Falun Gong if he returns to China. It follows that the Tribunal is not satisfied that he has a well-founded fear of persecution for reasons of his real or imputed religion, political opinion or membership of a particular social group.’
THE COURT BELOW
Before the Federal Magistrate, the appellant contended that the Tribunal had failed to afford him procedural fairness, and acted in breach of section 424A of the Migration Act1958 (Cth) (‘the Act’) because it failed to put certain ‘information’ to him for comment, namely the Tribunal’s reasoning regarding his lack of credibility (based upon him not being aware of the main Falun Gong books and the fact that he could provide only a limited description of the location where he practiced Falun Gong in Australia). The Federal Magistrate rejected these contentions, holding that the Tribunal’s subjective thought processes did not constitute ‘information’ for the purposes of section 424A(1) of the Act, and referring to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
His Honour noted that the Tribunal had relied upon information provided by the appellant to the Tribunal and independent country information, both of which came within the exception contained in section 424A(3) of the Act, and that a failure to put this information to him did not amount to a breach of section 424A. Furthermore, his Honour referred to the Tribunal’s obligation to provide procedural fairness elucidated in the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, particularly at [44], to raise at the hearing and give the appellant a sufficient opportunity to address any issue that may turn out to be determinative in relation to the review.
His Honour then reviewed the Tribunal’s decision and noted that the Tribunal had put to the appellant each of the concerns it had with his claims and evidence that were ultimately determinative in its decision. In relation to the Tribunal’s handling of the appellant’s claims, the Federal Magistrate found that the Tribunal had acknowledged the appellant’s claimed difficulties with English and that the Tribunal’s decision was based rather on his ‘inability to provide anything more than a limited description of the location where he practised and how he practised and who he practised with.’
His Honour also rejected the claims in relation to the appellant’s age and his passport as irrelevant.
The Federal Magistrate recorded the fact that the appellant had had an opportunity to file additional information or evidence but did not do so and found that he was satisfied ‘on what has been put before the Court today, that the Tribunal complied with its procedural fairness obligations.’ The Federal Magistrate ultimately found himself unable to discern any jurisdictional error and accordingly dismissed the application.
THE PRESENT APPEAL
The Notice of Appeal filed in this Court on 29 February 2008 is almost identical to the contentions the appellant raised before the Federal Magistrate set out in [9] of the Federal Magistrate’s decision. The only additions to those contentions are the words ‘the Federal Magistrates Court failed to deal with this claim fairly.’
At the hearing of the appeal before me, the appellant appeared in person unrepresented but assisted by an interpreter. His sole submission was that he was a genuine practitioner of Falun Gong.
Ms Mafessanti, who appeared for the Minister, relied upon the outline of written submissions that had earlier been filed.
In summary, the Minister submitted that the Federal Magistrate had committed no error and certainly not any jurisdictional error, in his review of the Tribunal’s decision. The specific ‘information’ the appellant has identified as giving rise to his concerns is first, that he was said not to be aware of the main Falun Gong books, in particular, ‘Juin Falun’ and secondly, that it was said he could only provide a limited description of the location where he practiced Falun Gong in Australia. Of course, the Tribunal relied upon a number of other matters in its decision including his visit to Australia in 2005 and his failure to seek asylum on that occasion.
In my view, the Federal Magistrate was quite correct in holding that as this ‘information’ constituted a part of the Tribunal’s subjective thought processes, leading to its adverse conclusion on the appellant’s credibility, it did not constitute information for the purposes of section 424A(1) and the Tribunal was therefore not obliged to put it to the appellant nor provide him with an opportunity to comment on it. Further, in my view, the Federal Magistrate was quite correct in holding that this information was information that the appellant had provided (or failed to provide) to the Tribunal and it was therefore within the exception contained in section 424A(3) of the Act; and a failure to put this information to him did not amount to a breach of section 424A.
Finally, in my view, the Federal Magistrate was quite correct in holding that the Tribunal complied with his obligations to provide procedural fairness to the appellant elucidated in the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (supra) by putting to the appellant each of the concerns it had with his claims and evidence that were ultimately determinative of its decision. That is, the Tribunal put those concerns to him during the hearing. It follows, in my view, that the Federal Magistrate committed no appellable error and this appeal must therefore be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice REEVES. Associate:
Dated: 20 May 2008
Appellant: In person Counsel for the First Respondent: Ms Mafessanti
Date of Hearing: 13 May 2008 Date of Judgment: 13 May 2008
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